%m 


mm 


UNIVERSITY 
AT   LOS 


ANGELES 


OUTLINES 

OF 

INTERNATIONAL  LAW 


BY 

CHARLES  H.   STOCKTON 

REAR-ADMIRAL  U.  S.  N.,  RETIRED 

PBESIDENT  OF  THE   OBORGE   WA8HINOTOH   USIVEB8ITT,   DELEGATE   PLENIPOTENTIABT    TO 

THE   LONDON   NAVAL    CONFERENCE 

AUTHOB  or  "the   LAWS   AND   USAGES   OF   WAR    AT   SEA  "    AND   OF   A    MANUAL  OF 

IHTEBMATIONAL   LAW   FOB   THK   CBE  OF   NAVAL   OFFICBBS 


CHARLES  SCRIBNER'S  SONS 

New    YORK  CHICAGO  BOSTON 


118203 


COPTKIQHT,    1914,    BT 

CHARLES  SCBIBNEB'S  SONS 


PREFACE 

The  deplorable  war  which  is  being  carried  on  at  the  time  of 
this  writing,  extending,  as  it  does,  to  three  of  the  great  con- 
tinents of  the  world,  has  created  many  complex  problems  and 
delicate  situations  in  connection  with  international  law.  It 
has  been  said  by  good  authority  that  there  have  arisen  more 
vexed  questions  in  international  law  during  the  first  six  weeks 
of  this  war  than  during  the  entire  period  of  the  Napoleonic 
contests.  From  this  fact  alone  arises  the  importance  not  only 
of  increased  knowledge  of  the  tenets  of  this  subject  but  also 
the  necessity  for  treatises  that  are  abreast  the  times.  A  num- 
ber of  books  upon  the  subject  have  become  out  of  date,  espe- 
cially in  the  body  of  their  text,  by  changes  that  have  occurred, 
partly  as  the  results  of  the  recent  tribunals  and  conferences  of 
The  Hague  and  of  the  London  Naval  Conference  of  1909. 
These  results  have  taken  the  form  of  important  conventions 
and  declarations,  amounting,  in  fact,  to  a  partial  codification  of 
the  laws  and  usages  of  war  ashore  and  afloat. 

In  addition  to  the  changes  referred  to  there  have  occurred 
new  situations,  international  in  character,  brought  into  exis- 
tence by  the  various  negotiations  and  treaties  incident  to  the 
construction  of  the  Suez  and  Panama  Canals.  There  are  also 
changes  in  aspects  and  conditions  arising  from  the  development 
of  maritime  and  aerial  warfare  in  recent  wars.  We  can  add, 
also,  to  this  statement  of  recent  developments  in  international 
law,  the  mention  of  the  increase  in  the  range  and  number  of 
treaties  providing  for  arbitration  and  other  methods  for  the 
pacific  settlement  of  international  disputes.     Although  these 

T 


vi  PREFACE 

instrumentalities  have  not,  unhappily,  eliminated  warfare,  they 
have  effected  settlements  in  various  international  disputes  of 
serious  moment,  such  as  the  Venezuelan  boundary  question, 
the  Dogger  Bank  episode,  and  the  long-continued  and  at  times 
irritating  questions  of  the  fisheries  of  the  Bering  Sea  and 
North  Atlantic  Ocean. 

In  addition  to  the  need  of  a  new  text-book  for  study,  there 
are  certainly  other  reasons  for  the  addition,  even  of  a  multipli- 
cation, of  elementary  books  treating  upon  international  law  in 
this  country.  The  continuous  and  remarkable  growth  of  the 
United  States  in  area,  population,  travel,  and  trade  has  not 
only  created  and  extended  many  interests  and  important  re- 
lations with  other  nations  of  the  world,  but  it  has  also  caused 
a  closer  and  complicated  interdependence.  With  this  great 
and  growing  international  Intercourse  In  view  It  seems  hardly 
necessary  to  say  more  as  to  the  importance  of  a  knowledge  of 
the  law  of  nations  In  war  time  and  in  peace.  Information  upon 
these  subjects  Is  not  only  valuable  to  our  representatives  at 
home  and  abroad,  but  to  all  intelligent  citizens,  especially  as 
the  general  government  Is  becoming  closer  in  Its  relations  with 
and  dependence  upon  Its  citizen  voters. 

In  a  work  upon  International  law,  which  should  be  above 
all  things  authoritative  In  its  nature,  frequent  reference  to 
recognized  authorities  becomes  Indispensable.  This  Is  the  case, 
as  a  distinguished  writer  says,  "not  only  as  pointing  to  the 
source  of  particular  statements,  but  also  as  directing  to  the 
stores  of  further  information  which  might  otherwise  escape 
the  notice  of  the  student  who  would  desire  to  extend  his  re- 
search into  wider  fields." 

For  these  reasons  I  ha:ve  consulted  many  writers  and  freely 
quoted  those  whose  statements  and  authority  justify  such 
quotations  when  they  are  pertinent  to  the  subjects  discussed. 
Of  the  writings  of  our  own  countrymen,  I  have  drawn  freely 
from  the  exhaustive  digest  of  international  law  of  Professor 
John  Bassett  Moore,  from  Dana's  edition  of  Wheaton,  and 


PREFACE  vii 

from  other  works  by  American  writers,  to  whom  due  credit  has 
been  given.  Of  recent  English  writers  consulted  I  will  mention 
Doctor  Thomas  J.  Lawrence,  Professor  A.  Pearce  Higgins,  and 
especially  the  works  of  Doctors  Westlake  and  Oppenheim. 
The  recent  work  in  French  by  Professor  Ernest  Nys,  of  the 
University  of  Brussels,  I  have  found  both  interesting  and 
valuable. 

In  closing  these  prefatory  remarks,  it  may  be  wise  to  call 
attention  to  the  policy  and  position  which  the  United  States 
has  assumed  in  regard  to  the  tenets  of  international  law.  In- 
ternational law  is  a  part  of  the  law  of  our  land  as  shown  by  the 
Constitution  of  the  United  States  and  also  by  the  decisions  of 
our  jurists.  In  addition.  Sir  Henry  Maine  makes  a  wise  and 
sound  interpretation  of  our  position  when  he  says  that: 

"The  statesmen  and  jurists  of  the  United  States  do  not  re- 
gard international  law  as  having  become  binding  on  their  coun- 
try through  the  intervention  of  any  legislature.  They  do  not 
believe  it  to  be  of  the  nature  of  immemorial  usage,  *of  which 
the  memory  of  man  runneth  not  to  the  contrary.'  They  look 
upon  its  rules  as  a  main  part  of  the  conditions  on  which  a  state 
is  originally  received  into  the  family  of  civilized  nations.  This 
view,  though  not  quite  explicitly  set  forth,  does  not  really 
differ  from  that  entertained  by  the  founders  of  international 
law,  and  it  is  practically  that  submitted  to  and  assumed  to  be 
a  sufficiently  solid  basis  for  further  inferences  by  governments 
and  lawyers  of  the  civilized  sovereign  communities  of  our  day. 
If  they  put  it  in  another  way  it  would  probably  be  that  the 
state  which  disclaims  the  authority  of  international  law  places 
herself  outside  the  circle  of  civilized  nations." 

In  conclusion,  I  can  only  add  the  words  of  Daniel  Webster 
when,  as  Secretary  of  State,  he  wrote  to  our  representative 
to  Mexico  that: 

"Every  nation,  on  being  received,  at  her  own  request,  into 
the  circle  of  civilized  governments,  must  understand  that  she 
not  only  attains  rights  of  sovereignty  and  the  dignity  of  national 


via  PREFACE 

character,  but  that  she  binds  herself  also  to  the  strict  and 
faithful  observance  of  all  those  principles,  laws,  and  usages 
which  have  obtained  currency  among  civilized  states,  and 
which  have  for  their  object  the  mitigation  of  the  miseries  of 
war." 

Charles  H.  Stockton. 

Washington,  D.  C,  October  1,  1914. 


CONTENTS 

PART  I— INTRODUCTORY 

CHAPTER  I 
The  Natube,  Scope,  and  Observance  of  International  Law 

FAGB 

1.  The  nature  of  international  law 1 

2.  The  term  "  international  law " 3 

3.  International  law  to  be  distinguished  from  other  named  subjects  4 

4.  The  conflict  of  laws,  or  international  private  law       ,      .      .      .  4 

5.  International  comity,  or  the  comity  of  nations 4 

6.  International  state  policy,  or  diplomacy 5 

7.  International  ethics 6 

8.  International  law  compared  with  municipal  law 7 

9.  International  law  as  part  of  municipal  law 8 

10.  Codification  of  international  law 10 

11.  Observance  of  international  law 11 

CHAPTER  II 

The  Sources  op  International,  Law.    The  Early  Intercourse  op 

Peoples 

12.  The  original  motives  and  causes  of  international  law      ...  14 

13.  The  sources  of  international  law 15 

14.  The  early  history  of  the  intercourse  of  nations 20 

15.  Code  of  Manu 22 

16.  The  Hebrews         22 

17.  Other  intercourse  of  the  ancients 24 

18.  International  laws  and  usages  of  the  Greeks 24 

19.  International  intercourse  and  laws  of  the  Romans     ....  25 

20.  The  Dark  and  Middle  Ages 27 

21.  The  predecessors  of  Grotius 30 

22.  Grotius,  the  founder  of  the  science  of  modem  international  law  32 

CHAPTER   III 
The  Development  op  Modern  International  Law 

23.  The  peace  of  Westphalia  and  the  Thirty  Years'  War      ...  37 

24.  The  Bucccesora  of  Grotius 38 

IX 


X  CONTENTS 

TAGB 

25.  From  the  peace  of  Westphalia  until  the  peace  of  Utrecht    .      .  39 

26.  From  the  peace  of  Utrecht  to  the  French  Revolution     ...  41 

27.  From  the  outbreak  of  the  French  Revolution  to  the  congress  of 

Vienna 43 

28.  From  the  congress  of  Vienna  to  the  declaration  of  Paris      .     .  44 

29.  The  enunciation  of  the  Monroe  Doctrine 46 

30.  The  declaration  of  Paris 47 

31.  From  the  declaration  of  Paris  to  the  treaty  of  Washington,  1871  49 

32.  From  the  treaty  of  Washington  of  1871  to  the  first  Hague  con- 

ference     50 

33.  The  first  Hague  conference 52 

34.  The  second  Hague  conference 53 

35.  The  declaration  of  London 57 

36.  Events  since  1909  bearing  upon  international  law     ....  59 


PART  II— STATES  IN  INTERNATIONAL  LAW 

CHAPTER  IV 

States:  The  Primary  Subjects  of  International  Law;   Their 
Characteristics  and  Classification 

37.  Sovereign  states  the  subjects  of  international  law      ....  61 

38.  Definition  of  a  sovereign  state 61 

39.  Characteristics  and  conditions  of  sovereign  states      ....  61 

40.  Equality  of  sovereign  states  in  a  legal  sense 62 

41.  States,   communities,   corporations,   and  institutions  that  are 

not  primarily  subjects  of  international  law 63 

42.  Neutrahzed  states 65 

43.  Part-sovereign  states  and  protectorates 67 

44.  The  North  American  Indians  and  the  native  princes  of  British 

India 68 

CHAPTER  V 

r  Formation,  Recognition,  and  Continuity  of  States.    Changes  of 
y     Governments.     De  Facto  Governments.    Extinction  of  States 

45.  The  formation  of  states 72 

46.  The  formation  of  a  state  by  occupation  or  colonization  in  a  ter- 

ritory without  civilized  population 73 

47.  The  formation  of  a  state  by  the  attainment,  after  previous 

.   existence,  of  sufficiently  full  civilization  and  standing       .      .       74 

48.  Formation  of  states  by  the  division  of  a  state  into  two  or  more 

nationalities 75 

49.  The  attainment  of  independence  by  reUef  from  the  subjection 

of  another  state 75 

50.  The  combination  of  a  number  of  minor  states  into  a  union  or 

confederation 76 

61.    The  attainment  of  independence  by  an  insurgent  community   .       76 


CONTENTS  xi 

PAOB 

52.  The  state  of  insurgency         77 

53.  The  state  of  belligerency  and  its  recognition 81 

54.  The  recognition  of  a  new  state        85 

55.  Continuity  of  states 88 

56.  De  facto  governments 90 

57.  Extinction  of  states * 91 


CHAPTER  VI 

r- 

IThe  Succession  of  States.     Fundamental  Rights  and   Duties   op 
\        States.    Independence  and  Equality  of  States.    Self-Presek- 
^      vation.     Respect  for  the  Dignity  and  Honor  of  the  State 

58.  The  succession  of  states  and  sovereignty 94 

59.  Fundamental  rights  and  duties  of  sovereign  states    ....  97 

60.  The  right  of  independence  and  legal  equality 98 

61.  Intervention 100 

62.  The  right  of  self-preservation 103 

63.  Respect  for  the  dignity  and  honor  of  the  state 109 

CHAPTER  VII 
Territorial  Jurisdiction  op  a  State 

64.  Exclusive  jurisdiction  over  its  own  territory 112 

65.  The  right  to  hold  and  acquire  property      .      .      ...      .      .      .  113 

66.  Boundaries  of  states 119 

67.  State  servitudes 123 

68.  Territorial  waters 125 

69.  The  marine  league 126 

70.  Straits 131 

71.  Rivers 134 

72.  Interoceanic  canals 136 

73.  The  Panama  Canal 139 

74.  Hay-Bunau-Varilla  treaty 143 

CHAPTER  VIII 

The   High   Seas.    Immunities  of   Foreign   Vessels   in   Ports  and 

Waters 

75.  What  is  meant  by  the  high  seas 147 

76.  The  freedom  of  the  high  seas 148 

77.  Jurisdiction  over  vessels  upon  the  high  seas  and  other  waters   .  152 

78.  Piracy 154 

79.  Right  of  approach 155 

80.  Papers  carried  by  merchant  vessels 156 

81.  Immunities  of  foreign  vessels  of  war  in  ports  and  waters      .  158 

82.  Immunity  from  arrest  when  asylum  is  sought  on  board  vessels 

of  war 162 

83.  Status  of  merchant  vessels  in  foreign  porta 167 


xii  CONTENTS 

CHAPTER  IX 
Nationality.    Aliens.    Extradition 

PAOB 

84.  Nationality 175 

85.  Citizenship  by  birth 178 

86.  Naturalization 181 

87.  Corporations  as  citizens 185 

88.  AUens 185 

89.  Domicile        187 

90.  Extradition 189 

91.  Extradition  of  deserters 192 

PART   III— INTERCOURSE  OF   STATES   IN  TIME  OF 

PEACE 

^  CHAPTER  X 

The  Head  op  the  State.    Diplomatic  Intercottrsb.    The  Right  of 
^  Asylum  in  Legations  and  Embassies 

92.  The  head  of  the  state 195 

93.  Immunities  of  the  head  of  a  state 196 

94.  Diplomatic  intercourse 197 

95.  The  appointment  and  reception  of  embassies  or  diplomatic 

agents 199 

96.  Rank  and  classification  of  diplomatic  officials 202 

97.  The  duties  of  diplomatic  officials         204 

98.  The  rights  and  privileges  of  diplomatic  oflBcials       ....  206 

99.  Right  of  asylum  in  legations  and  embassies 210 

100.  Termination  of  diplomatic  mission 212 

101.  Agents  of  the  state  without  diplomatic  or  consular  character  .  213 


CHAPTER  XI 
Consuls.    Exequatur.    Rights,  Immunities,  and  Duties  of  Consular 


f 

y  Officers 


102.  Historical  sketch  of  consulat'es 218 

103.  Definition  of  a  consul  and  his  general  functions 220 

104.  Classification  and  precedence  of  consuls        223 

105.  Exequatur — installation  of  the  consul      .......  225 

106.  Duties  of  consular  officers        230 

107.  Foreign  consular  systems 232 

108.  Termination  of  consular  functions 233 

109.  Exterritoriality — consuls  with  judicial  functions      ....  234 

CHAPTER  XII 

International  Agreements.    Negotiations.    Congresses  and 

Conferences 

11 5.     International  agreements 237 

111.  Negotiations 237 

112.  Congresses  and  conferences 238 


CONTENTS  xiii 


CHAPTER  XIII 
I  International  Treaties 

^  PAQH 

113.  Definition  of  a  treaty.     Early  existence  of  treaties  ....  242 

114.  Nature  and  classification  of  treaties 243 

115.  The  parties  to  a  treaty 244 

116.  Matters  necessary  to  the  validity  of  treaties 245 

117.  Form  and  ratification  of  treaties 246 

118.  Enforcement  of  treaties 250 

119.  The  operation  of  treaties 253 

CHAPTER  XIV 
I  Interpretation  of  Treaties.    Termination  op  Treaties 

120.  Interpretation  of  treaties 257 

121.  The  most-favored-nation  clause 260 

122.  Termination  of  treaties 263 

123.  Effect  of  war  upon  treaties 264 

124.  Abrogation  or  modification  of  treaties 268 


h 


CHAPTER  XV 


Mediation.    Arbitration.    Arbitral  Tribunals  and  Conferences 

125.  Mediation 271 

126.  Arbitration 274 

127.  International  commissions  of  inquiry 277 

128.  Obligatory  arbitration 278 

129.  The  judicial  settlement  of  international  disputes     ....  279 

CHAPTER  XVI 
Measures  of  Constraint  Short  op  Wab 

130.  The  suspension  of  diplomatic  relations 283 

131.  Retorsions 285 

132.  Reprisals 286 

133.  Pacific  blockade 289 


PART  IV— WAR-RELATIONS  OF   BELLIGERENTS 

CHAPTER  XVII 

General  Questions  as  to  War.     Outbreak  of  War.     Armed  Forces 

OF  THE  State 

134.  General  questions  as  to  war 293 

135.  Outbreak  of  war 294 

136.  Armed  forces  of  the  state 298 

,  /  ■  V  V     ^ 


XIV  CONTENTS 

CHAPTER  XVIII 
Effect  op  War  upon  Individuals.     Effect  op  War  as  to  Property 

FAOG 

137.  Effect  of  war  upon  combatants  and  non-combatants     .     .     .  300 

138.  Effect  of  war  as  to  property 305 

CHAPTER  XIX 
Laws  op  War.     Laws  op  Land  Warfare 

139.  Laws  of  war  in  general 309 

140.  Modern  development  of  the  laws  of  war 310 

141.  Laws  of  war  and  the  private  citizen 312 

142.  The  laws  of  war  on  land.     Belligerents 315 

143.  Prisoners  of  war 317 

144.  HostiUties 324 

145.  Spies 326 

146.  Flags  of  truce 327 

147.  Capitulations 328 

148.  Armistices 328 

149.  Reprisals  or  retahation 329 

CHAPTER  XX 

Maritime  Warfare 

150.  Maritime  war  in  general 332 

151.  Laws  and  usages  of  war  at  sea 333 

152.  Attack  and  capture  of  public  vessels  of  the  enemy  ....  334 

153.  The  use  of  torpedoes  and  submarine  mines 337 

154.  Conversion  of  merchantmen  into  vessels  of  war       ....  337 

155.  Capture  of  enemy's  merchantmen 340 

156.  Exemptions  and  restrictions  in  capture  in  maritime  warfare     .  343 

157.  Enemy  character  in  maritime  warfare 346 

158.  The  procedure  of  the  capture  and  sending  in  of  a  merchantman  347 

159.  Destruction  of  enemy  vessels  as  prizes 348 

160.  Resistance  to  search,  recapture,  ransom,  and  safe  conduct      .  349 

161.  Bombardments  by  naval  forces  in  time  of  war 350 

162.  Submarine  cables  in  time  of  war 351 

CHAPTER  XXI 

Aerial  Warfare.     Wireless  Telegraph 

163.  Aerial  warfare  in  general 355 

164.  The  sovereignty  of  the  air 357 

165.  Aerial  warfare  as  affected  by  the  laws  of  war 359 

166.  Wireless  telegraphy 360 


CONTENTS  XV 

CHAPTER  XXII 
Military  Occupation.   Termination  of  War.    Conquest  and  Cession 

PAGE 

167.  The  meaning  of  military  occupation 364 

168.  The  authority  of  the  military  occupant 366 

169.  Limitations  to  the  miUtary  authority  of  the  occupant  .      .     .  367 

170.  Termination  of  war 372 

171.  Treaty  of  peace         374 

172.  Effects  of  treaties  of  peace 376 

173.  Conquest  and  cession .-  377 


PART  V— RELATIONS   BETWEEN  BELLIGERENTS 

AND   NEUTRALS 

CHAPTER  XXIII 

Neutrality  and  Its  Development.    Rights  and  Duties  of  Neutrals 

IN  Land  Warfare 

174.  The  creation  of  neutral  states  by  commencement  of  war    .      .  380 

175.  The  status  and  principles  of  neutrality 381 

176.  The  development  of  the  law  of  neutrality 383 

177.  Neutral  rights  and  duties  in  land  warfare 389 

178.  Proclamations  and  declarations  of  neutrality 396 


CHAPTER  XXIV 

Rights  and  Obligations  op  Neutrals  and  Belligerents  in  Mari- 
time Warfare  ,- 

179.  The  inviolabihty  of  neutral  territory  and  waters     ....  398 

180.  The  use  of  neutral  waters  as  a  base  of  naval  operations     .      .  401 

181.  Obligations  of  neutrals  as  to  their  waters 402 

182.  The  rights  of  visit  and  search 409 

183.  Convoy 411 

184.  Spohation  of  papers 412 

185.  Hostile  expeditions 413 

186.  Right  of  angary 415 


CHAPTER  XXV 
Blockade 

187.  Blockade — its  extent  and  effectiveness 418 

188.  Declaration  and  notification  of  blockade 421 

189.  Liabihty  to  capture  for  breach  of  blockade 423 


xvi  CONTENTS 

CHAPTER  XXVI 
Contraband  op  War.    Carriage  op  Contraband 

PAGB 

190.  Definition  and  general  principles  of  contraband       ....  427 

191.  Enumeration  of  contraband  and  non-contraband  articles  .      .  428 

192.  Destination  of  contraband  and  consequent  judgment    .      .      .  433 

193.  The  penalty  of  contraband  trade 436 

194.  Pre-emption 440 

CHAPTER  XXVII 

Unneutral  Service 

195.  The  carriage  of  persons  and  despatches  for  the  enemy  .     .     .  442 

196.  The  case  of  the  Trent 447 

197.  The  opening  to  neutrals  of  a  trade  closed  in  peace  ....  449 

198.  Rescue  of  shipwrecked  belligerents  by  neutral  vessels  .      .     .  451 

199.  Destruction  of  neutral  prizes 453 

CHAPTER  XXVIII 
Transfer  op  Flag.    Enemt  Character.     Prizb-Courts 

200.  Transfer  to  a  neutral  flag 458 

201.  Enemy  character 461 

202.  The  sending  in  of  prizes  for  their  adjudication 462 

203.  Jurisdiction  of  national  prize  tribunals 463 

204.  International  prize-court 466 

205.  Compensation  for  capture  when  found  void 468 

CHAPTER  XXIX 
Open  and  Unsettled  Questions  in  Maritime  Warparb 

206.  A  general  discussion  of  unsettled  questions  in  maritime  warfare  471 

207.  Days  of  grace  at  the  outbreak  of  war 473 

208.  The  question  of  domicile  or  nationality  as  the  determining 

factor  in  maritime  capture 474 

209.  The  conversion  of  merchantmen  into  vessels  of  war  upon  the 

high  seas  or  in  neutral  waters 475 

210.  The  use  of  floating  mines  on  the  high  seas 477 


List  op  Authorities  Consulted ,    •    .    481 


(■ 


CONTENTS  xvii 

APPENDIX   I 

PAGB 

The  Recognition  of  Belugerenct  and  of  Independence  .     .     487 

APPENDIX   II 


Convention   for  the  Pacific   Settlement  of   International 

Disputes 500 


APPENDIX   III 

International  Prize-Cotjrt  Convention  Signed  at  The  Hague, 

October  18,  1907 520 


APPENDIX   IV 

International  Naval  Conference  Signed   at  London,   Feb- 
ruary 26,  1909 535 


APPENDIX  V 
Neutrality — Germany  and  Great  Britain      .     .     .     ,     .""  .    598 

Index 603 


OUTLINES   OF  INTEENATIONAL  LAW 

PART  I 
INTRODUCTORY 

CHAPTER  I 

THE  NATURE,  SCOPE,   AND  OBSERVANCE  OF 
INTERNATIONAL  LAW 

I.  The  Nature  of  International  Law. — International  law- 
is  that  body  of  rules  and  obligations  which  prescribes  the 
rights  and  duties  of  states  and  which  governs  generally  the 
conduct  of  modern  civilized  states  in  their  relations  with  each 
other  and  with  individuals  of  other  states. 

These  rules  and  obligations  may  justly  be  considered  as 
based  upon  humanity  and  upon  the  moral  convictions  and 
wise  experience  of  enlightened  mankind.  They  are  no  longer 
confined  in  their  operations  to  the  Christian  states  of  the  world. 

These  rules  and  principles  should  also  govern,  in  a  broad  and 
humane  way,  the  conduct  of  all  civilized  states  in  their  rela- 
tions toward  peoples  who  are  less  than  civilized  in  their  usages 
and  behavior. 

"  International  law,"  as  Doctor  Pearce  Higgins  happily 
observes,  "  is  not  a  body  of  rules  which  lawyers  have  evolved 
out  of  their  own  inner  consciousness:  it  is  not  a  system  care- 
fully thought  out  by  university  professors,  bookworms,  or  other 
theorists  in  the  quiet  and  seclusion  of  their  studies.  It  is  a 
living  body  of  practical  rules  and  principles  which  have  grad- 
ually come  into  being  by  the  custom  of  nations  and  international 

1 


2  INTRODUCTORY 

agreements.  To  the  formation  of  these  rules,  statesmen, 
diplomatists,  admirals,  generals,  judges,  and  publicists  have 
all  contributed.  It  is  also  of  comparatively  modern  origin, 
for  the  existing  state  system  of  the  world  dates  in  effect  from 
the  end  of  the  Middle  Ages."  ^ 

It  may  be  well  to  add  that  no  doubt  should  exist  as  to  the 
establishment  of  any  rule  of  international  law  if  it  be  invoked 
as  authoritative.  As  Chief  Justice  Alverstone,  of  Great  Britain, 
aptly  said :  "  The  mere  opinions  of  jurists,  however  eminent  or 
learned  that  it  ought  to  be  so  recognized,  are  not  in  themselves 
sufficient.  They  must  have  received  the  express  sanction  of 
international  agreement  or  gradually  have  grown  to  be  a  part 
of  international  law  by  their  frequent  practical  recognition 
in  dealings  between  various  nations."  ^ 

A  very  distinguished  English  legal  writer,  in  answering  the 
question,  What  is  international  law?  says  very  pertinently: 
"  International  law  is  evolved  in  the  practice  of  states  under 
the  dictates  of  advancing  civilization.  It  is  a  living  fact. 
Though  there  be,  indeed,  no  specially  appointed  and  recog- 
nizable international  legislator,  though  there  be  no  specially 
appointed  and  recognizable  international  court,  though  there 
be  no  specially  appointed  and  recognizable  international  sanc- 
tion, international  law  is,  and  moves,  and  has  its  being.  In- 
ternational legislators  are  all  legislators  who  deal  with  the 
questions  of  the  relations  of  men  as  members  of  different 
states;  international  courts  are  all  courts  which  take  to  cog- 
nizance the  like  problems;  and  international  sanctions  are  all 
sanctions  which  enforce  the  decisions  of  these  courts.  And 
beyond  and  behind  these  courts  is  in  the  last  resort  the  stern 
arbiter  war;  once  the  unchecked  private  vengeance,  now  the 
regulated  self-help  of  nations.  State  lawyer,  state  judge,  and 
state  enforcement,  these  are  so  many  unconscious  international 
agents  when  they  have  to  do  with  rules  of  conduct  observed 

1  "The  Binding  Force  of  Int.  Law,"  A.  P.  Higgins,  p.  3. 

«  West  Rand  Central  Gold  Mining  Co.  v.  King  (L.  R.  1905,  2  K.  B.  391). 


NATURE,  SCOPE,  AND  OBSERVANCE  3 

by  men  as  members  of  different  states,  even  when  they  declare 
doctrines  the  reverse  of  cosmopolitan. 

"  And  whether  it  be  by  comity,  whether  it  be  of  grace,  or 
whether  it  be  of  fear,  civiHzed  peoples  in  fact  do  take  into 
account  the  existence  of  systems  of  law  other  than  their  own."^ 

2.  The  Term  "  International  Law." — The  term  interna- 
tional law  was  proposed  about  the  year  1780  by  Jeremy 
Bentham,  an  English  writer,  in  a  work  upon  the  subject  of 
"  Morals  and  Legislation,"  as  the  proper  expression  to  cover 
the  same  ground  as  the  phrase  "  laws  of  nations  "  in  English, 
the  Droit  des  Gens  or  Droit  international  in  French,  and  Vdl- 
kerrecht  in  German.  It  will  be  used  in  this  book  in  common 
with  the  expression  "the  law  of  nations"  and  as  a  synonymous 
term. 

Both  expressions,  but  especially  that  of  international  law, 
have  been  criticised  by  various  English  and  other  writers, 
generally  upon  the  ground  that,  states  being  independent,  a 
rule  which  is  observed  between  states  or  nations  is,  in  so  far 
as  it  is  international,  not  properly  a  law,  while,  in  so  far  as  it 
is  properly  law,  it  is  not  international,  the  term  international 
law  thus  involving,  it  was  said,  a  contradiction. 

The  principal  critic  of  this  term  was  Mr.  John  Austin,  a 
learned  English  jurist,  and  the  criticism  was  made  especially 
in  his  work  upon  "  the  principles  of  jurisprudence  and  termi- 
nology." Without  entering  into  the  question  of  the  Aus- 
tinian  theory  of  law  and  that  of  other  writers  upon  the  same 
subject,  it  can  be  said  that  the  term  has  made  its  way  into  the 
language  and  terminology  of  the  subject  and  superseded  to  a 
great  extent  the  older  term  of  the  law  of  nations.  In  regard 
to  the  significance  of  the  term,  Walker  says  very  truly  and  suc- 
cinctly that  "  rather  let  us  have  peace  and  peacefulness  with- 
out the  blessings  of  neat  terminology  than  precise  language 
and  therewith  the  spirit  of  lawlessness.  It  is  well  to  have  a 
formally  faultless  science  of  jurisprudence;  it  is  better  to  have 
»  Walker's  "Science  of  Int.  Law,"  pp.  50,  51. 


4  INTRODUCTORY 

English-speaking  peoples  displaying  ready  obedience  to  the 
dictates  of  honor,  justice,  and  proved  utility  enshrined  in  the 
rules  known  as  the  law  of  nations,  or  international  law."  ^ 

3.  International  Law  to  Be  Distinguished  from  Other 
Named  Subjects. — International  law,  or  international  public 
law,  should  be  distinguished  from  other  international  subjects 
which,  though  somewhat  related,  cover  to  a  more  or  less  degree 
different  purposes.  These  are  international  private  law,  or 
the  conflict  of  laws;  international  comity,  or  the  comity  of 
nations;  international  state  policy,  or  diplomacy;  and  inter- 
national ethics,  or  international  morality.  By  defining  these 
subjects  in  the  following  paragraphs,  we  will  make  the  neces- 
sary dilTerentiation  of  the  subjects. 

4.  The  Conflict  of  Laws,  or  International  Private  Law. — 
International  private  law,  or,  preferably,  the  conflict  of  laws, 
comprises  the  rules  and  principles  used  in  deciding  cases  of 
private  rights  which  arise  from  conflicting  national  systems  of 
law.  These  rules  and  principles  derive  their  force  from  the 
municipal  law  and  sovereignty  of  the  state  which  administers 
them  and  affects  individuals  only.  Under  these  rules  munici- 
pal courts  decide  upon  the  jurisdiction  of  the  case  and  "  by 
what  national  force  it  is  just  that  it  should  be  decided."  ^  In 
the  United  States  the  various  States  of  the  Union  are  regarded 
as  sovereign  from  the  point  of  view  of  the  conflict  of  laws. 

In  general,  international  private  law  relates  to  questions 
such  as  those  of  citizenship,  minority,  legitimacy,  lunacy,  the 
validity  of  foreign  marriages,  wills,  and  contracts,  and  to  the 
limits  of  national  jurisdiction  in  private  cases.  The  prevail- 
ing principle  is  that  the  jural  capacity  of  a  person  is  determined 
by  the  law  of  his  domicile.' 

5.  International  Comity,  or  the  Comity  of  Nations. — ^The 
comity  of  nations  comprises  those  acts,  usages,  and  rules  of 
good-will,  etiquette,  and  courteous  treatment  that  are  due  from 

1  Walker,  "History  of  Law  of  Nations,"  p.  19. 

»  Hall,  6th  ed.,  p.  51.  '  Woolsey,  6th  ed.,  p.  105. 


NATURE,  SCOPE,  AND  OBSERVANCE  5 

one  nation  to  another  and  which  are  based  upon  mutual  self- 
respect.  These  matters  are  generally  observed  without  being 
concerns  of  rigid  obligation  unless  made  so  by  treaty  or  con- 
ventional agreement.  The  etiquette  existing  and  observed 
between  nations,  although  not  international  law,  is  a  concom- 
itant and  almost,  if  not  quite,  as  binding. 

The  use  of  formal  and  more  or  less  defined  courtesy  between 
sovereign  and  other  states  causes  the  prevention  of  jealousies 
and  disputes,  while  it  is  true,  on  the  other  hand,  when  the 
usages  are  once  established,  that  to  withhold  such  courtesies 
is  a  slight  and  causes  friction.  But,  on  the  whole,  as  in  a 
human  society,  it  is  probable  that  without  these  courtesies 
there  would  be  a  greater  amount  pf  existing  unfriendliness.^ 

Included  in  this  comity  of  nations  are  the  courteous  relations 
existing  between  men-of-war  of  different  nations  and  the  sys- 
tem of  honors  and  salutes  afloat  and  ashore.  They  are  now  a 
matter  of  international  arrangement,  though  less  exacting  than 
formerly.  It  has  been  well  said  of  them  by  Ortolan,  a  French 
writer,  that  they  are  of  use  as  honors  paid  to  the  Independence 
of  nations,  as  a  public,  authorized  recognition  that  the  sover- 
eignties of  the  world  are  entitled  to  mutual  respect.  They  en- 
courage the  personnel  of  public  vessels,  from  the  commanding 
officer  down  to  the  seaman  of  the  lowest  rating,  to  feel  that 
the  national  honor  is  in  their  hands  and  thus  raise  the  sense  of 
character  of  those  who  are  its  representatives  abroad  or  upon 
the  high  seas.^ 

6.  International  State  Policy,  or  Diplomacy. — Diplomacy, 
according  to  Bernard,  "  means,  in  its  wider  sense,  the  art  or 
science,  real  or  imaginary,  of  foreign  politics — in  its  narrower 
acceptation  it  stands  for  the  art,  or  imaginary  art,  of  negotiat- 
ing, or  for  negotiation  itself  considered  as  a  business  or  employ- 
ment." The  word  diplomacy,  or  its  equivalent  in  French,  is 
of  no  earlier  date  than  the  French  ministry  of  Vergennes, 

» Woolsey,  6th  ed.,  pp.  118,  119. 

•Ortolan,  "Diplomatic  de  la  mer,"  pp.  316,  332,  345. 


6  INTRODUCTORY 

It  is  well  to  quote,  in  treating  of  this  subject,  the  following 
extracts  from  the  preface  of  the  scholarly  "  History  of  Diplo- 
macy "  by  our  countryman  and  diplomatist,  Doctor  D.  J. 
Hill.     He  says: 

"  It  is,  perhaps,  at  present  worth  the  effort  to  point  out  the 
fact  that  the  fixed  legal  and  conventional  relations  between 
modern  states  are  as  firmly  grounded  in  public  needs  and  fun- 
damental principles  as  the  constitutions  of  the  different  coun- 
tries which  compose  the  international  system.  It  is  true 
that  force  has  been  a  determining  element  in  the  conflict  of 
nations,  as  it  is  in  the  maintenance  of  civil  order  within  the 
state;  but  it  is  not  mere  aimless  or  undirected  force  that  has 
produced  the  present  international  system.  On  the  contrary, 
it  is  due  to  the  gradual  perception  of  the  conditions  on  which 
human  governments  can  be  permanently  based.  It  is  the 
result  of  reasoned  policy  and  deliberately  formed  conventions 
in  restraint  of  force — the  triumph  of  statesmanship  and  di- 
plomacy not  shaped  and  determined  by  military  action  but 
controlling  the  movements  of  armies  and  navies  whose  coercive 
powers  are  put  in  action  only  by  decisions  reached  after  delib- 
eration at  the  council-board."  ^ 

Bulmerincq  in  a  cogent  way  makes  a  discrimination  between 
international  law  and  international  policy  when  he  says:  "  Law 
leaves  no  choice;  policy  keeps  open  various  means  to  an  end 
and  permits  a  free  choice  in  respect  to  these."  ^ 

7.  International  Ethics. — International  ethics  has  been  de- 
fined as  the  principles  which  should  govern  international  rela- 
tions from  the  higher  point  of  view  of  morality,  justice,  and 
humanity.^ 

As  a  background,  however,  to  the  crystallized  codes  and 
usages  of  international  law  there  should  always  be  interna- 
tional ethics.     Although  Woolsey  does  not  favor  any  distine- 

1  Hill,  "History  of  European  Diplomacy,"  vol.  I,  Preface,  p.  ix. 

2  Marquardsen's  "Handbuch,"  I,  par.  3. 

'  Hershey'a  "  Essentials  of  Int.  Law,"  p.  2. 


NATURE,  SCOPE,  AND  OBSERVANCE  7 

tion  being  drawn  between  international  law  and  international 
ethics,  nevertheless  his  words  used  in  discussing  the  general 
question  express  to  an  extent  the  actual  difference  between 
these  moral  and  jural  spheres.  He  says:  "  The  advantage  of 
separating  international  law  in  its  theoretical  form  from  the 
positive  existing  code  depends  not  on  the  possibility  of  con- 
structing a  perfect  code  according  to  a  true  theory  but  on  the 
fact  that  right  views  of  justice  may  serve  as  a  touchstone  of 
actual  usages  and  regulations;  for  in  all  jural  science  it  is  most 
important  to  distinguish  between  the  law  as  it  is  and  as  it 
should  be."  * 

An  elevated  opinion  of  the  connection  between  the  two  is 
given  in  a  speech  made  by  John  Bright  in  the  British  House 
of  Commons  in  his  explanation  of  his  resignation  from  the  min- 
istry after  the  bombardment  of  Alexandria  in  1882.  He  said: 
"  The  House  knows  that  for  forty  years  at  least  I  have  endeav- 
ored to  teach  my  countrymen  an  opinion  and  doctrine  which  I 
hold,  namely,  that  the  moral  law  is  intended  not  only  for 
individual  life  but  for  the  life  and  practice  of  states  in  their 
dealing  with  one  another.  I  think  that  in  the  present  case 
there  has  been  a  manifest  violation  both  of  international  law 
and  of  the  moral  law,  and  therefore  it  is  impossible  for  me  to 
give  my  support  to  it."  ^ 

8.  International  Law  Compared  with  Municipal  Law. — 
International  law  differs  from  national  or  municipal  law, 
especially  from  that  which  is  written  law,  in  that  it  has  pri- 
marily states  instead  of  persons  for  its  subjects,  that  it  does  not 
proceed  from  any  superior  lawmaking  power,  and  that  there 
is  no  sovereign  authority  whose  function  it  is  to  enforce  the 
law  in  the  case  of  neglect  or  violation.  Its  existence  is,  how- 
ever, accepted  by  all  civilized  states  as  a  ruling  force  between 
them,  and  it  is  never  abrogated  nor  suspended  by  them  in  time 
of  peace  or  war.^ 

»  WoolHcy's  " Int.  Law,"  p.  3.  »  Trevelyan,  "Life  of  Bright,"  p.  426. 

•Stockton,  "Manual  of  Int.  Law  for  Naval  Officers,"  p.  13. 


8  INTRODUCTORY 

International  law,  especially  in  Great  Britain  and  the  United 
States,  is  a  matter  of  judicial  recognition,  sanction,  and  even 
interpretation.  Mr.  Justice  Gray  of  the  United  States  Supreme 
Court,  in  the  case  of  the  Paquete  Hahana,  said:  "  International 
law  is  a  part  of  our  law  and  must  be  ascertained  and  admitted 
by  the  courts  of  justice  of  appropriate  jurisdiction  as  often 
as  questions  of  right  depending  upon  it  are  duly  presented  for 
their  determination."  ^ 

In  the  convention  of  the  second  Hague  conference  for  the 
establishment  of  an  international  prize-court,  which  conven- 
tion has  been  ratified  by  the  United  States,  it  is  provided  that 
in  the  absence  of  treaty  provisions  this  court  shall  apply  the 
rules  of  international  law.  If  no  generally  recognized  rule 
exists,  the  court  shall  give  judgment  in  accordance  with  the 
general  principles  of  justice  and  equity. 

9.  International  Law  as  Part  of  Municipal  Law. — All  civ- 
ilized states  that  are  or  claim  to  be  members  of  the  family  of 
nations  recognize  international  law  in  one  way  or  another  as 
part  of  the  law  of  the  land.  Before,  however,  it  can  become 
a  part  of  municipal  law  the  two  laws  or  systems  must  have 
equally  exalted  standards.  In  the  first  place,  it  is  expected 
that  we  find  in  the  country  concerned  the  necessary  degree  of 
civilization.  It  has  been  well  said  that  it  is  impossible  for  states 
to  take  part  in  modern  international  society  when  they  are 
unable  to  realize  the  ideas  on  which  such  society  is  based  and 
that  the  area  within  which  international  law  operates  properly 
coincides  with  the  area  of  civilization. 

"  As  soon  as  a  nation,"  says  Woolsey,  "  has  assumed  the 
obligations  of  international  law,  they  become  a  portion  of  the 
law  of  the  land  to  govern  the  decisions  of  courts,  the  conduct 
of  the  rulers  and  that  of  the  people.  A  nation  is  bound  to 
protect  this  part  of  law  by  statute  and  penalty  as  much  as  that 
part  which  controls  the  jural  relations  or  in  other  ways  affects 
the  actions  of  individuals."  ^ 

1  Paquete  Hahana,  "Scott's  Cases,"  19.         »  Woolsey,  "Int.  Law,"  p.  27. 


NATURE,  SCOPE,  AND  OBSERVANCE  9 

As  to  England,  Blackstone  says :  "  International  law  is 
adopted  in  its  full  extent  by  the  laws  of  England;  and  when- 
ever any  question  arises  which  is  properly  subject  to  its  juris- 
diction it  is  held  to  be  a  part  of  the  law  of  the  land."  This 
view  was  held  continuously  by  the  high  judicial  authorities  of 
Great  Britain  until  the  exceptional  opinion  of  Chief  Justice 
Cockburn,  delivered  in  the  case  of  the  ship  Franconia,  which 
opinion  was  supported  by  seven  out  of  the  thirteen  judges 
sitting  in  the  case.  They  declined  to  enforce  the  rule  of  Black- 
stone  just  recited  and  held  that  enacted  municipal  law  was  re- 
quired to  enforce  the  international  law  of  the  case  which  was 
as  to  criminal  jurisdiction  over  a  foreign  vessel  within  the 
marginal  waters  of  the  English  shore.  This  decision  caused 
much  unfavorable  opinion  and  was  practically  nullified  by  the 
passage  of  an  act  of  Parliament. 

It  has  been  supplanted  also  as  an  authority  by  a  recent 
decision  of  Lord  Chief  Justice  Alverstone  in  1905  in  which  he 
said:  "  It  is  quite  true  that  whatever  has  received  the  common 
consent  of  civilized  nations  must  have  received  the  assent  of 
our  country  and  that  to  which  we  have  assented  along  with 
other  nations  in  general  may  properly  be  called  international 
law  and  as  such  will  be  acknowledged  and  applied  by  our 
municipal  tribunals  when  legitimate  occasion  arises  for  those 
tribunals  to  decide  questions  to  which  doctrines  of  interna- 
tional law  may  be  relevant."  ^ 

As  to  the  United  States,  we  may  quote  Chief  Justice  Marshall 
in  the  case  of  the  Nereide,  in  which  he  declared  international 
law  to  be  "  a  part  of  the  law  of  the  land."  Besides  similar 
opinions,  both  from  the  Supreme  Court  of  the  United  States  in 
the  cases  of  the  Scotia  and  the  Paquete  Ilahana  and  of  learned 
jurists,  the  Constitution  of  the  United  States  in  Section  8,  Arti- 
cle I,  invests  in  Congress  the  power  "  to  define  and  punish  offences 
against  the  laws  of  nations,"  and  in  Section  2,  Article  III, 

»  Case  of  West  Rand  Central  Gold  Mining  Co.  t;.  the  King  (L.  R.  1905, 
2  K.  B.  391). 


10  INTRODUCTORY 

it  is  provided  that  "  in  all  cases  affecting  ambassadors,  other 
pubUc  ministers,  and  consuls  .  .  .  the  Supreme  Court  shall 
have  original  jurisdiction." 

10.  Codification  of  International  Law. — ^The  various  codes 
and  collections  of  sea  laws  existing  before  the  time  of  Grotius 
represent  the  first  attempts  of  codification  of  a  part  of  what 
has  since  become  international  law.  International  sea  trade 
created  laws  and  usages  of  this  nature  long  before  their  neces- 
sity was  recognized  on  shore.  The  high  seas  became  common, 
as  time  advanced,  to  all  countries  which  possessed  shipping, 
and  hence  these  codes  as  evolved  became  factors  in  the  devel- 
opment of  sea  trade  and  intercourse  and  also  as  usages  and 
customs  that  have  been  incorporated  largely  in  our  present 
maritime  international  and  municipal  law. 

By  far  the  most  important  and  best  preserved  of  these  codes 
is  "  The  Consolato  del  Mare,"  compiled  in  Barcelona,  Spain, 
in  the  middle  or  latter  part  of  the  fourteenth  century,  in  the 
dialect  of  the  Roman  tongue  which  was  then  and  is  to  an  extent 
still  the  language  of  the  province  of  Catalonia,  in  which  Barce- 
lona is  situated.  This  compilation  is  considered  by  the  best 
writers  upon  the  subject  not  as  a  legislative  code  but  as  a  record 
of  the  customs  and  usages  received  as  law  by  the  various  com- 
mercial communities  of  the  Mediterranean.  It  was  considered 
of  great  authoritative  value  upon  certain  subjects  and  is  still 
of  value  as  the  exponent  of  many  laws  and  traditions.  It 
embraces  rules  governing  not  only  civil  contracts  relating  to 
trade  and  navigation  in  peace  but  expounded  principles  then 
recognized  as  bearing  upon  belligerent  and  neutral  rights  in 
time  of  war. 

Earlier  and  other  sea  codes  were  the  "  Rhodian  laws,"  dat- 
ing back  in  part  to  the  eighth  century;  "  The  Tabula  Amal- 
fitana,"  claimed  to  have  originated  in  Amalfi,  Italy,  in  the  tenth 
century;  the  laws  of  Oleron,  France,  of  the  twelfth  century; 
and  the  Leges  Wisbuensis  of  Wisby,  Gothland,  for  the  northern 
seas,  dated  in  the  fourteenth  century. 


NATURE,  SCOPE,  AND  OBSERVANCE  11 

Modern  movement  toward  the  codification  of  international 
law  is  progressing  by  various  general  compilations,  efforts  of 
learned  writers,  and  also  by  means  of  partial  codifications,  the 
results  of  individual  efforts  and  those  of  various  international 
conferences  of  recent  times.  Among  the  individual  codifica- 
tions are  those  of  Lieber,  Field,  Levi,  Fiore,  Bluntschli,  and 
others,  while  as  a  result  of  international  conferences  there  are 
the  declaration  of  Paris,  1856,  the  rules  of  the  Geneva  conven- 
tions, 1864-9,  the  declaration  of  St.  Petersburg,  1868,  the  dec- 
laration of  London,  1909,  and  the  codes  and  conventions  of 
the  Brussels  and  Hague  conferences. 

It  is  true  that  most  of  these  are  fragmentary  and  partial 
and  vary  as  to  definiteness  in  statement,  but  it  is  wise  that  the 
progress  should  be  in  that  manner  awaiting  the  formation  of  a 
code  of  universal  authority.  The  law  uncodified  by  authority, 
like  the  common  law  of  England,  still  remains  in  force. 

II.  Observance  of  International  Law. — We  will  now  deal 
with  the  matter  of  the  observance  of  international  law  by  the 
civilized  countries  of  the  world.  In  the  first  place,  we  may 
state  that  international  law  cannot  be  restricted  to  any  po- 
litical or  geographical  group  of  civilized  countries.  It  is  no 
longer  even  confined  to  Christian  states,  for  the  moment  a 
nation  attains  and  exhibits  sufficient  civilization,  self-restraint, 
and  independence  it  naturally  enters  into  the  body  of  states  to 
whom,  as  a  whole,  international  law  applies. 

The  government  of  every  country,  civilized  or  not,  is  com- 
pelled to  be  alive  to  the  existence  of  other  states  and  to  the 
questions  arising  from  intercourse  with  them.  "  Even,"  as 
Lawrence  says,  "  where  a  state  adopts  a  self-sufficient  theory 
of  national  life,  and  endeavors,  as  China  did  till  quite  recent 
times,  to  keep  its  people  from  all  intercourse  with  foreigners, 
it  does  not  escape  from  the  necessity  of  dealing  with  them.  It 
cannot  act  as  if  it  were  alone  in  the  world,  for  the  simple 
reason  that  it  is  not  alone.  The  whole  machinery  of  non- 
intercourse  is  created  with  a  view  to  other  states  and  absorbs 


12  INTRODUCTORY 

in  its  working  no  small  care  and  attention  of  the  government. 
If,  then,  external  affairs  have  from  the  necessity  of  the  case  to 
be  dealt  with  by  states  which  have  adopted  a  policy  of  the 
most  rigorous  isolation,  it  is  clear  that  the  vast  majority  of 
peoples  who  desire  a  greater  or  less  amount  of  intercourse  with 
their  neighbors  impose  thereby  upon  their  rulers  the  task  of 
dealing  to  a  very  large  extent  with  foreign  nations."^ 

From  this  necessity  alone  a  body  of  governing  rules  would 
arise  and  from  this  necessity  would  also  follow  their  observance. 
The  fact  of  occasional  violations  would  be  the  rule  of  similar 
violations  of  civil  and  other  laws. 

Although  international  law  does  not  proceed  from  any  su- 
perior lawmaking  power  and  there  is  no  sovereign  authority 
whose  function  it  is  to  enforce  its  provisions,  it  is  accepted  by 
all  civilized  states  and  is  not  abrogated  or  suspended  by  them 
in  time  of  peace  or  in  time  of  war.  A  recognition  of  its  obli- 
gations is,  as  we  have  previously  stated,  incorporated  in  the 
municipal  laws  of  most  states,  and  punishments  for  offences 
against  its  requirements  is  in  our  country  vested  in  Congress. 

As  an  interesting  provision  for  its  enforcement  I  will  quote 
Article  66  of  the  declaration  of  London,  which  reads  as  follows: 
"  The  signatory  powers  undertake  to  insure  the  mutual  obser- 
vance of  the  rules  contained  in  the  present  declaration  in  any 
war  in  which  the  belligerents  are  parties  thereto.  They  will 
therefore  issue  the  necessary  instructions  to  their  authorities 
and  to  their  armed  forces,  and  will  take  such  measures  as  may 
be  required  in  order  to  insure  that  it  will  be  applied  by  their 
courts  and  more  particularly  their  prize-courts." 

Various  schemes  and  projects  have  been  suggested  for  many 
centuries  of  a  federation  of  the  leading  military  and  naval 
powers,  and  also  of  syndicates  of  states  charged  with  enforce- 
ments of  international  law  and  of  measures  for  prevention  of 
wars,  with  provisions  for  the  organization  of  international 
police  or  armed  forces.  This  remedy  would  threaten  the  inde- 
^  Lawrence's  "Principles,"  3d  ed.,  pp.  3,  4. 


NATURE,  SCOPE,  AND  OBSERVANCE  13 

pendence  and  individuality  of  nations  and  as  a  remedy  seems 
not  only  impracticable  but  liable  to  be  worse  in  its  workings 
than  the  disease  which  it  endeavors  to  cure. 

TOPICS  AND  REFERENCES 

1.  Nature  of  International  Law — 

Walker,  "Science  of  International  Law,"  chaps.  I  and  II.  Oppen- 
heim,  "International  Law,"  vol.  I,  2d  ed.,  3-9.  Halleck's  "In- 
ternational Law,"  Baker's  ed.,  vol.  I,  50,  5L 

2.  The  Propriety  and  Significance  of  the  Term  "International  Law" — 

Holland's  "Jurisprudence,"  10th  ed.,  380,  note.  Wheaton's  "In- 
ternational Law,"  par.  12,  Hall,  "International  Law,"  6th  ed., 
13-16. 

3.  International  Public  Law,  International  Private  Law,  or  Conflict  of 

Laws,  the  Comity  of  Nations,  Diplomacy,  International  Ethics — 
W.  E.  Hall,  "International  Law,"  6th  ed.,  118,  119.  Whar- 
ton's "Conflict  of  Laws."  Foster's  "American  Diplomacy,"  2, 
etc. 

4.  International  Law  Compared  with  Municipal  or  National  Law — 

Moore's  "Digest,"  vol.  I,  pars.  1  and  2.  Holland's  "Jurispru- 
dence," 10th  ed.,  40  and  58.  Walker's  "Science  of  Interna- 
tional Law,"  46-52. 

5.  International  Law  Part  of  Municipal  Law — 

Oppenheim,  "International  Law,"  2d  ed.,  vol.  I,  pars.  20-25. 
Moore's  "Digest,  International  Law,"  vol.  I,  2-4.  Maine's 
"International  Law,"  36,  etc. 

6.  Codification  of  International  Law — 

Higgins's  "Hague  Peace  Conferences,"  8-17.  Holland's  " Studies," 
etc.,  59-78.     Oppenheim,  vol.  I,  2d  ed.,  35-44. 

7.  Observance  of  International  Law — 

Higgins,  "Binding  Force  of  International  Law."  Hall's  "Interna- 
tional Law,"  6th  ed.,  215.  Moore's  "Digest,"  vol.  VI,  par.  987. 
Oppenheim,  vol.  I,  2d  ed.,  par.  156. 


CHAPTER  II 

THE  SOURCES  OF  INTERNATIONAL  LAW.    THE  EARLY 
INTERCOURSE  OF  PEOPLES 

12.    The  Original  Motives  and  Causes  of  International  Law. 

— International  law,  properly  so  called,  as  it  exists  in  modern 
times,  is  the  law  regulating  the  intercourse  of  sovereign  states. 
As  a  consequence,  the  science  of  modern  international  law  did 
not  exist  in  the  times  of  antiquity  and  of  the  Middle  Ages, 
before  sovereign  states  were  known  or  existed,  with  their  inde- 
pendence and  equality  and  consequent  rights  and  duties.  But 
in  the  early  times  mentioned  there  did  exist  intercourse  be- 
tween the  peoples  and  nations  as  then  existing,  and  from  that 
intercourse  grew  certain  rules,  codes,  and  usages  which  served, 
in  a  way,  the  purposes  of  such  intercourse  and  have  since  gone 
into  the  making  of  modern  international  law. 

From  this  intercourse  and  from  the  motives  and  causes  of 
this  intercourse  we  can  then  find  the  fountainhead  of  inter- 
national law.  These  motives  can  be  said  to  be  due  to  the  needs 
and  to  the  social  and  communal  spirit  of  mankind,  which 
existed  from  the  beginning  until  the  present  time. 

It  is  true  that  these  rules  and  customs  were  sometimes  relig- 
ious in  their  nature  and  origin  and  sometimes  a  result  of 
humane  instincts  for  the  mitigation  of  the  horrors  of  early 
warfare,  but  most  frequently  they  were  the  outgrowth  of  the 
human  need  for  co-operation  and  social  intercourse  which  had 
gradually  extended  from  groups  of  human  beings  and  families 
to  communities,  cities,  and  so-called  nations.  These  combina- 
tions, by  further  extension  in  modern  times,  brought  into  exis- 

14 


SOURCES  OF  INTERNATIONAL  LAW  15 

tence  the  general  association  of  .civilized  states  known  as  the 
family  of  nations,  with  its  laws  and  usages. 

Phillimore  savs  of  this  extension,  that  "  to  move  and  live 
and  have  its  being  in  the  great  community  of  states  is  as  much 
the  normal  condition  of  a  single  nation  as  to  live  in  a  social 
itate  is  the  normal  condition  of  mankind."^ 

13.    The  Sources  of  International  Law. — In  addition  to  the 

.uses  just  mentioned,  from  which  originated  early  interna- 

inal  usage  and  intercourse,  there  are  other  sources  to  which 
dern  international  law  owes  its  formation  and  growth. 
■  .;  first  source,  then,  of  international  law,  in  the  opinion  of 
I.  e  'vriter,  is 

((.)  Customs  and  rules  of  peoples  and  nations  in  early  days. 

Concerning  this.  Professor  Moore  says:  "Of  the  positive 
element  of  the  new  science  the  Roman  civil  law  was  the  chief 
source,  since  it  was  the  foundation  of  the  jurisprudence  of  the 
countries  of  continental  Europe,  whose  laws  and  practices  were 
chiefly  consulted." ^ 

In  previous  paragraphs  allusion  has  been  made  to  the  exis- 
tence of  rules  and  customs  accompanying  the  mutual  inter- 
course of  peoples  in  war  and  peace  in  the  earlier  days.  These 
will  be  referred  to  later,  when  dealing  with  the  history  of  the 
international  relations  of  antiquity,  and  though  the  rules  of 
war  especially  were  more  cruel  and  drastic  than  now,  still  we 
will  find  certain  elementary  usages  which  are  not  unfamiliar 
to  us  even  in  the  present  century.  The  various  sea  codes  and 
laws  previously  mentioned  can  be  classed  among  the  rules  to 
which  reference  is  made.     As  a  second  source  can  be  named 

(6)  The  treatises  of  the  great  publicists,  such  as  Grotius,  Gen- 
tilis,  Bynkershoek,  Vattel,  and  others  of  earlier  times.  The 
great  work  of  Grotius,  entitled  "  De  Jure  Belli  ac  Pacis,"  was 
published  in  1625,  in  the  early  days  of  the  Thirty  Years'  War, 
and  its  publication  and  reception  marks  a  period  in  the  history 
of  civilization.     Grotius  has  been  called  the  father  of  inter- 

*  Phillimore,  vol.  I,  par.  7.  *  Moore's  "Digest,"  vol.  Ill,  p.  2. 


16  INTRODUCTORY 

national  law,  and  without  doubt  his  works,  with  their  deep  and 
far-reaching  effect,  deserve  to  be  mentioned  among  the  primary 
sources  of  modern  international  law. 

*'  With  Grotius,"  says  Woolsey,  "  a  new  era  begins.  His 
great  work  was  practical,  not  scientific;  it  was  to  bring  the 
practice  of  nations,  especially  in  war,  into  conformity  with 
justice.  He  held  firmly  to  a  system  of  natural  justice  between 
states  without,  however,  very  accurately  defining  it.  To  pos- 
itive law,  also,  originated  by  states,  he  conceded  an  obligatory 
force,  unless  it  contravened  this  justice  of  nature.  In  setting 
forth  his  views  he  adduces  in  rich  abundance  the  opinions  of 
the  ancients  and  illustrations  from  Greek  and  Roman  history. 
.  The  nobleness  of  his  mind  and  L  *s  claim  to  respect  as  the  fa- 
ther of  the  science  have  given  to  his  treatise,  '  De  Jure  Belli 
ac  Pacis,'  an  enduring  influence."  ^ 

Another  important  source  of  international  law  is  found  in 

(c)  International  treaties  and  agreements. 

These  treaties  are  the  result  of  long  negotiations,  but  more 
especially  are  derived  from  various  international  conferences 
oflficially  assembled  and  whose  product  becomes  universally 
adhered  to  and  put  in  practice.  It  is  not  essential  that  all 
civilized  states  should  be  represented  in  such  conferences  or 
congresses,  but  it  is  necessary  that  they  should  adhere  to  the 
results  either  by  act  or  in  principles.  The  principles  of  such 
treaties  as  the  treaty  of  Westphalia,  the  congress  of  Vienna, 
and  the  treaty  of  Paris  in  1856,  and  some  of  the  conventions 
of  The  Hague  conferences,  are  examples  of  this  nature.  A 
fourth  source  is 

(d)  Treaties  between  states. 

These  may  be  between  two  or  more  states  or  between  a 
considerable  number  of  states,  with  the  purpose  of  declaring 
existing  laws  or  recommending  the  establishment  of  newly 
defined  usages  or  principles.  These  treaties,  without  creating 
rules  of  international  law,  are  early  steps  taken  for  their  sanc- 
» Woolsey,  6th  ed.,  "Int.  Law,"  pp.  29,  30. 


SOURCES  OF  INTERNATIONAL  LAW  17 

tlon  and  toward  their  general  adoption.  Among  treaties  of  this 
nature  can  be  mentioned  the  Treaty  of  Washington  of  1871, 
with  its  three  rules  as  to  neutral  states  which  have  since  been 
so  much  further  extended  in  authority  by  their  practical  ac- 
ceptance in  the  conventions  of  The  Hague  conferences.  Next 
can  be  named  the 

(e)  Decisions  of  arbitral  and  judicial  tribunals. 

Among  these  tribunals  can  be  named  courts  of  arbitration, 
mixed  tribunals,  international  commissions  of  inquiry,  and  na- 
tional prize-courts,  especially  those  of  last  appeal.  Particular 
decisions  of  this  class  can  be  found  in  those  of  the  United 
States  Supreme  Court  in  prize  cases,  the  decisions  of  Lord 
Stowell  and  other  famous  jurists  in  English  prize  cases,  in  that 
of  the  Geneva  arbitration  which  settled  the  Alabama  claims 
in  1872,  the  finding  of  the  North  Sea  commission  of  inquiry 
of  1906  which  settled  the  Dogger  Bank  affair,  and  the  decisions 
of  The  Hague  tribunals  in  such  questions  as  those  of  the  New- 
foundland fisheries,  etc. 

The  decisions  of  national  prize-courts,  although  of  value,  as 
Dana  shows,  because  they  exhibit  the  judicial  manner  of  set- 
tlement after  full  argument  in  open  court,  on  both  sides  of  the 
question,  are  after  all  unilateral  and  national.  In  speaking  of 
these  Chief  Justice  Marshall,  in  the  case  of  the  Thirty  Hogs- 
heads of  Sugar  V.  Boyd,  says:  "  The  decisions  of  the  courts  of 
every  country  show  how  the  law  of  nations,  in  the  given  case, 
is  understood  in  that  country,  and  will  be  considered  in  adopt- 
ing the  rule  which  is  to  prevail  in  this."  ^ 

We  come  next  to  the  sixth  of  the  sources  which  consists  of  the 

(/)  Agreements  and  rules  formulated  by  various  official  and 
unofficial  international  bodies  of  accepted  standing. 

These  agreements  and  rules  can  remain  simply  as  expression 

of  what  international  law  should  be  in  the  opinion  of  men  learned 

in  the  law,  or,  if  they  are  properly  assembled,  they  can  present 

protocols,   declarations,  or   conventions   which,   adopted  and 

1  Moore's  "Digest,"  vol.  I,  p.  2. 


18  INTRODUCTORY 

signed  by  duly  accredited  delegates,  can  be  made,  after  rat- 
ification, international  agreements  which  by  sufficient  adher- 
ence may  finally  be  accepted  as  international  law. 

These  international  bodies  range  in  standing  from  the 
Geneva  conference  of  18G8,  the  Brussels  conference  of  1874, 
the  conventions  of  The  Hague  of  1899  and  1907,  and  the  Lon- 
don naval  conference  of  1909  to  such  learned  associations  as 
the  Institute  of  International  Law. 

Next  come 

(g)  Unilateral  acts,  decrees,  codes,  and  instructions  issued 
by  a  state  for  the  guidance  of  its  representatives,  which  can  be 
considered  as  among  the  sources  of  modern  international  law. 
The  following  are  enumerated  by  Hershey  as  "  famous  ex- 
amples": the  French  marine  ordinance  of  1681;  the  British 
admiralty  manuals  and  the  American  naval  war  code  of  1900 
(withdrawn  in  1904);  the  instructions  for  the  government 
of  the  armies  of  the  United  States  in  the  field,  issued  during 
our  Civil  War;  the  United  States  neutrality  laws  of  1794  and 
1818;  the  British  foreign  enlistment  acts  of  1819  and  1870; 
and  the  various  proclamations  and  declarations  of  neutrality 
issued  at  the  outbreak  of  late  important  wars.^ 

(h)  Opinions  of  statesmen  and  official  legal  counsel. 

These  are  expressed  and  found  in  state  papers  and  duly  pub- 
lished official  legal  opinions,  and  are  of  importance  as  evidences 
of  what,  in  the  opinion  of  well-versed  and  responsible  officials, 
is  or  should  be  considered  as  international  law.  Such  state 
papers  written  upon  controversial  subjects  of  state  policy  from 
the  pens  of  distinguished  men  are  naturally  of  great  ability  and 
consequence. 

(i)  The  writings  of  modern  Jurists  and  historians. 

"  Wheaton  places  among  the  principal  sources  of  international 

law  '  text-books  of  authority,  showing  what  is  the  approved 

usage  of  nations,  or  the  general  opinion  respecting  their  mutual 

conduct,  with  the  definitions  and  modifications  introduced  by 

1  Hershey's  "Essentials,"  pp.  22,  23. 


SOURCES  OF  INTERNATIONAL  LAW  19 

general  consent.'  As  to  them,  he  forcibly  observes:  '  Without 
wishing  to  exaggerate  the  importance  of  these  writers  or  to 
substitute  in  any  case  their  authority  for  the  principles  of  rea- 
son, it  may  be  affirmed  that  they  are  generally  impartial  in 
their  judgment.'  They  are  witness  of  the  sentiments  and  usages 
of  civilized  nations,  and  the  weight  of  their  testimony  increases 
every  time  that  their  authority  is  invoked  by  statesmen  and 
every  year  that  passes  without  the  rules  laid  down  in  their 
works  being  impugned  by  the  avowal  of  contrary  principles."  ^ 

As  to  the  importance  of  the  history  of  international  law  as 
well  as  of  general  history  in  connection  with  its  study  and 
its  development  as  a  science,  I  can  do  no  better  than  to  quote 
what  the  elder  Woolsey  has  said  upon  the  subject.  He  says 
that: 

"  In  every  branch  of  knowledge  the  history  of  the  branch  is 
an  important  auxiliary  to  its  scientific  treatment.  From  the 
changes  and  improvements  in  the  law  of  nations  it  is  evident 
that  the  history  of  this  science — both  the  history  of  opinion 
and  practice — is  deserving  of  especial  attention.  It  is  a  lead- 
ing chapter  in  the  history  of  civilization.  It  furnishes  valuable 
hints  for  the  future.  Notwithstanding  its  dark  passages,  it 
is  calculated  to  animate  the  friends  of  justice  and  humanity. 
It  explains  the  present  state  of  the  science  and  indicates  the 
obstacles  which  have  retarded  its  advance.  .  .  .  History  tells 
of  crimes  against  the  law  of  nations,  as  well  as  of  its  construc- 
tion and  its  observance,  of  old  usages  or  principles  given  up 
and  new  ones  adopted.  There  is  no  value  in  the  mere  his- 
torical facts,  apart  from  reasons  or  pretexts  for  them,  and  from 
their  bearings  on  the  spread  of  justice  and  the  sense  of  human 
brotherhood  in  the  world."  ^ 

The  value  of  the  history  of  the  development  of  international 
law  and  the  consequent  deduction  of  "  the  moral  for  the  future 

*  Wheaton,  8th  ed.,  par.  15,  as  quoted  by  Justice  Gray  in  case  of  Paquet* 
Habana. 
•Woolaey,  "Int.  Law,"  6th  ed.,  pp.  31,  32. 


20  INTRODUCTORY 

out  of  the  events  of  the  past  "  has  caused  of  late  increased 
studies  of  the  past.  This  has  been  aided  by  discoveries  of 
early  records  and  a  resultant  intelligent  deciphering  of  these 
discoveries.  The  student  of  international  law  has  now  at  his 
service  excellent  histories  of  international  law  and  diplomacy 
in  English,  French,  and  German. 

Among  these  general  and  special  histories  I  may  mention,  in 
English,  Ward's  "Enquiry  into  the  Foundation  and  History  of 
the  Law  of  Nations,"  published  in  1795;  "The  Rise  and  Growth 
of  the  Law  of  Nations,"  by  Hosack,  first  published  in  1848; 
Henry  Wheaton's  "History  of  the  Law  of  Nations  from  the 
Earliest  Times  to  the  Treaty  of  Washington  of  1842,"  published 
both  in  English  and  French;  Walker's  "History  of  the  Law  of 
Nations,"  published  in  1899;  D.  J.  Hill's  "History  of  Di- 
plomacy in  the  International  Development  of  Europe,"  the 
first  volume  of  which  was  published  in  1905;  and  Phillipson's 
"International  Law  and  Custom  in  Ancient  Greece  and  Rome," 
published  in  1910. 

In  French  there  is  to  be  found  the  monumental  work  of 
Laurent,  in  fourteen  volumes,  "L'Histoire  des  Droits  des  Gens," 
etc.,  the  second  edition  of  which  was  published  from  1861  to 
1868;  Ortolan  wrote  upon  the  subject  of  the  Roman  law,  the 
last  edition  (Culver)  of  which  was  published  in  1896;  the  two 
valuable  works  of  Nys  are  "Le  Droit  de  la  guerre  et  les  pre- 
curseurs  de  Grotius,"  published  in  1882,  and  "Les  origines  de 
Droit  International,"  published  in  1894. 

In  German  there  are  to  be  found  upon  this  subject  the  works 
of  Miiller-Jochmus  of  1848,  those  of  Cybichowski  of  1907,  and 
that  of  Strupp,  published  in  1911. 

14.  The  Early  History  of  the  Intercourse  of  Nations. — ^It 
has  been  stated  in  the  first  portion  of  this  chapter  that  the  con- 
ditions of  the  peoples  of  antiquity  and  of  the  Middle  Ages  were 
such  that  modern  international  law  as  now  established  could 
not  have  existed.  It  was  explained,  however,  that  interna- 
tional intercourse  did  exist  under  certain  rules  and  usages,  and 


SOURCES  OF  INTERNATIONAL  LAW  21 

that  this  intercourse  was  in  time  of  peace  as  well  as  of  war  and, 
to  a  Hmited  extent,  was  of  a  friendly  nature.  The  relations 
and  intercourse  between  communities  and  peoples  were,  how- 
ever, largely  dominated  by  force.  War  was  then  the  habit- 
ual method  of  arranging  disputes  between  communities  and 
for  obtaining  desired  advantages.  Peace  was  conventional  in 
more  senses  than  one.  It  existed  from  special  agreements  and 
conventions.  The  foreigner  was  normally  an  enemy  and,  as  a 
stranger,  at  least  a  subject  of  suspicion  and  avoidance,  if  not 
of  open  enmity  and  savage  cruelty. 

In  most  histories  of  the  international  relations  of  the  peoples 
of  the  world  in  early  times  the  accounts  begin  with  the  Greeks 
and  Romans  and  their  times,  as  showing  the  beginning  of  the 
rules  of  international  law.  But  more  recent  investigation  and 
archaeological  discoveries  develop  the  fact  that  though,  as 
intimated,  war  was  the  habitual  intercourse  between  the  larger 
groups  of  men  and  communities  before  the  Greeks  and  Romans, 
it  was  not  always  the  case.  Sir  Henry  Maine  says :  "  Man 
has  never  been  so  ferocious  or  so  stupid  as  to  submit  to  such 
an  evil  as  war  without  some  effort  to  prevent  it.  It  is  not 
always  easy  to  read  the  tokens  of  his  desire  and  endeavor  to 
obviate  war  or  to  diminish  its  cruelties;  it  takes  some  time 
to  interpret  these  signs;  but  when  attention  is  directed  to  them 
they  are  quite  unmistakable.  The  number  of  ancient  institu- 
tions which  bear  the  marks  of  a  design  to  stand  in  the  way  of 
war,  and  to  provide  an  alternative  to  it,  is  exceedingly  great. 
There  are  numerous  old  forms  of  trial  discoverable  in  a  great 
number  »f  countries  and  in  a  great  number  ^f  races  in  which, 
amtng  the  ceremonial  acts  of  the  parties,  y»u  can  see  evidences 
#f  a  mimic  o«mbat.  The  Reman  sacramentum  is  the  best  and 
m»st  familiar  instance  ef  this.  What  we  call  a  judicial  pro- 
ceeding is  fbvi«usly  taking  the  place  •i  a  fight."  ^ 

"  The  history  tf  the  internatitnal  relatitns  tf  antiquity," 
says  Hershey,  "  is  by  n»  means  •ne  ©f  unrestrained  conquest 
»  Maine,  "Int.  Law,"  pp.  11,  12. 


22  INTRODUCTORY 

and  slaughter,  as  too  often  represented  by  the  older  historians. 
The  ancient  Egyptians,  the  Babylonians  or  Chaldeans,  the 
East  Indians,  and  the  Chinese  were  in  the  main  peaceful,  agri- 
cultural, and  industrial  peoples,  averse  to  bloodshed  and  con- 
quest except  when  driven  thereto  by  great  warriors  or  con- 
querors. The  Assyrians,  the  Hebrews,  the  Phoenicians  and 
Carthaginians,  and  the  Greeks  and  Romans  appear,  on  the 
other  hand,  to  have  been  more  warhke  and  bloodthirsty."^ 

15.  Code  of  Manu. — In  India  there  existed  the  code  or 
ordinances  of  Manu,  probably  compiled  about  500  B.  C,  in 
which  we  find  a  humane  set  of  instructions  or  recommendations 
for  warfare  that  are  creditable  alike  to  the  author  and  to  the 
probable  war  practices  of  the  times.  In  these  ordinances  it  is 
required  that  "  one  should  not,  fighting  in  battles,  slay  enemies 
by  concealed  weapons  nor  with  barbed  or  poisoned  (weapons) 
Aor  with  fire-kindled  arrows.  Nor  should  one  (mounted)  slay 
an  enemy  down  on  the  ground,  a  suppliant  one  with  loosened 
hair,  one  seated,  one  who  says  'I  am  thy  prisoner';  nor  one 
asleep,  one  without  armor,  one  naked,  one  without  weapons, 
one  not  fighting,  a  looker-on,  one  engaged  with  another;  nor 
one  who  has  his  arm  broken,  a  distressed  man,  one  badly  hit, 
one  afraid,  one  who  has  fled;  remembering  virtue  (one  should 
not  slay  them)."^ 

16.  The  Hebrews. — So  far  as  the  Hebrews  were  concerned, 
their  action  and  the  policy  enjoined  upon  them  by  Moses,  the 
Jewish  lawgiver,  was  drastic  and  at  times  very  cruel.  Es- 
pecially is  this  found  to  be  the  case  in  the  chapters  of  the  book 
of  Deuteronomy  toward  the  seven  nations  who  were  the  orig- 
inal inhabitants  of  the  promised  land  of  the  Hebrews. 

In  the  initial  verses  of  the  seventh  chapter  of  this  book  it 
reads  that  "  When  the  Lord  thy  God  shall  bring  thee  into  the 
land  whither  thou  goest  to  possess  it,  and  hath  cast  out  many 

1  Hershey,  "Essentials,"  pp.  28,  29. 

*"  Ordinances  of  Manu,"  Burnell  and  Hopkins,  London,  1891  (quoted 
by  Hershey,  pp.  30,  31),  lect.  VII,  nos.  90-93. 


SOURCES  OF  INTERNATIONAL  LAW  23 

nations  before  thee,  the  Hittites,  the  Gergashites,  and  the 
Amorites  and  the  Canaanites  and  the  Perizzites,  and  the 
Hivites  and  Jebusites,  seven  nations  greater  and  mightier  than 
thou;  and  when  the  Lord  thy  God  shall  deliver  them  before 
thee;  thou  shalt  smite  them,  and  utterly  destroy  them;  thou 
shalt  make  no  covenant  with  them,  nor  shew  mercy  upon  them; 
neither  shalt  thou  make  marriages  with  them;  thy  daughter 
thou  shalt  not  give  unto  his  son,  nor  his  daughter  shalt  thou 
take  unto  thy  son.  For  they  will  turn  away  thy  son  from 
following  me,  that  they  may  serve  other  gods;  so  will  the 
anger  of  the  Lord  be  kindled  against  you,  and  destroy  thee 
suddenly." 

Although  during  war  the  Hebrews  were,  as  has  been  quoted, 
savage  in  their  instructions  and  practice,  with  the  nations  con- 
cerned, still  with  other  peoples  than  the  seven  nations  their 
conduct  was  directed  to  be  less  severe.  In  the  twentieth  chap- 
ter of  the  same  book  of  Deuteronomy  (tenth  verse,  etc.),  it  is 
enjoined  that  "  When  thou  comest  nigh  unto  a  city  to  fight 
against  it,  then  proclaim  peace  unto  it.  And  it  shall  be,  if  it 
make  thee  answer  of  peace,  and  open  unto  thee,  then  shall  it  be, 
that  all  the  people  that  is  found  therein  shall  be  tributaries  unto 
thee,  and  they  shall  serve  thee.  And  if  it  will  make  no  peace 
with  thee,  but  will  make  war  with  thee  then  thou  shalt  besiege 
it;  and  when  the  Lord  thy  God  hath  delivered  it  unto  thine 
hands,  thou  shalt  smite  every  male  thereof  with  the  edge  of 
the  sword;  but  the  women  and  the  little  ones,  and  the  cattle, 
and  all  that  is  in  the  city,  even  all  the  spoil  thereof,  shalt  thou 
take  unto  thyself;  and  thou  shalt  eat  the  spoil  of  thine  enemies, 
which  the  Lord  thy  God  hath  given  thee." 

Savage  as  were  the  Hebrews  in  their  wars,  they  were  no 
worse  than  the  surrounding  nations  while  in  times  of  peace  they 
entered  into  friendly  relations  with  others  and  protected  the 
"  strangers  within  their  gates."  Hiram  of  Tyre  was  an  ally 
of  David,  and  under  Solomon  Jewish  merchant  vessels  visited 
and  traded  in  safety  with  distant  countries. 


24  ■  INTRODUCTORY 

17.  Other  Intercourse  of  the  Ancients. — The  earliest  treaty 
whose  text  has  been  transmitted  to  our  times  is  said  to  be 
that  between  Rameses  II  (the  Pharaoh  who  knew  not  Joseph) 
and  the  King  of  the  Hittites,  dated  about  1272  B.  C.  In  this 
treaty  is  recognized  full  reciprocity  and  equality  between  the 
two  kings  and  provision  is  made  for  the  mutual  extradition  of 
political  refugees  and  humane  treatment  of  immigrants. 

As  to  foreign  commerce,  however,  it  may  be  said  that  its 
conduct  in  these  times  approached  if  it  did  not  quite  reach 
plunder  and  piracy.  Besides  being  cruel  and  barbaric  in  their 
warfare,  the  Phoenicians  were  said  by  the  Greek  writers  to  be 
practised  pirates,  while  Montesquieu,  a  French  writer,  says 
that  "  Carthage  had  a  peculiar  law  of  nations.  She  caused  all 
strangers  who  traded  in  Sardinia  and  toward  the  pillars  of 
Hercules  to  be  drowned."  ^ 

Laurent,  a  Belgian  writer,  mentions,  as  a  relieving  feature  of 
these  times,  that  the  Persians,  ever  barbarous  in  their  warfare, 
had  at  their  court  a  minister  whose  duty  it  was  to  care  for  and 
entertain  foreign  guests.  He  goes  on  to  say  that  "  it  is  a 
beautiful  symbol  of  the  mission  which  belongs  to  the  department 
of  foreign  affairs.  The  diplomacy  of  the  future,  ceasing  to  be 
inspired  with  hate,  will  have  no  more  important  function  than 
that  of  cultivating  relations  of  friendship  between  nations."  ^ 

18.  International  Laws  and  Usages  of  the  Greeks. — In  times 
of  peace  the  mutual  relations  of  the  Greek  cities  were  char- 
acterized by  exclusiveness.  Throughout  Greece  the  state  of 
citizenship  was  a  privilege  that  was  jealously  guarded  against 
the  foreigner.  The  Athenians  were  reputed  to  be  the  most 
hospitable  of  the  Greeks,  but  even  at  Athens  the  domiciled 
aliens,  while  they  enjoyed  the  protection  of  the  local  laws 
through  the  agency  of  their  patron,  were  subjected  to  special 
taxation  and  were  liable  to  compulsory  service  in  the  rank  of 
hoplites  or  in  the  galleys. 

1  Montesquieu,  "  Esprit  des  Lois,"  book  XXI,  chap.  IL 

2  Laurent,  "Etudes  sur  rhumanite,"  p.  477. 


SOURCES  OF  INTERNATIONAL  LAW  25 

Sparta,  in  her  early  days,  refused  on  the  one  hand  to  permit 
strangers  to  reside  within  her  hmits,  and  on  the  other  hand 
forbade  her  citizens  to  hve  abroad.  Greek  care  for  the  stran- 
ger was  at  its  best  in  the  treaties  agreed  upon  for  the  mutual 
administration  of  justice  to  the  stranger.^ 

As  to  war  practice  it  may  be  said  that  the  herald  and  trophy 
were  inviolate  and  that  truces  were  fairly  observed.  Otherwise 
it  was  cruel  and  severe.  No  mercj^  was  expected  or  given  to 
the  defenders  of  a  city  taken  by  assault.  Prisoners  were  held 
as  slaves  or  killed  in  cold  blood.  Captives  were  maimed  or 
branded.  The  water-supply  of  a  city  under  siege  was  poisoned 
by  Solon  and  the  inhabitants  of  a  peaceful  country  town  were 
massacred  by  directions  of  an  Athenian.  The  rude  outlines 
of  the  public  laws  of  war  observed  by  the  Grecian  states  are 
given  by  Wheaton  as  follows  i^ 

(1)  The  rights  of  sepulture  were  not  to  be  denied  to  those 
slain  in  battle. 

(2)  After  a  victory  no  durable  trophy  was  to  be  erected. 

(3)  When  a  city  was  taken,  those  who  took  refuge  in  the 
temples  could  not  lawfully  be  put  to  death. 

(4)  Those  guilty  of  sacrilege  were  denied  the  rights  of  sepul- 
ture. 

(5)  All  the  Greeks  were  allowed  in  time  of  war,  as  well  as  of 
peace,  to  consult  the  oracles,  to  resort  to  the  public  games  and 
temples,  and  to  sacrifice  there  without  molestation. 

These  limitations  of  the  extreme  rights  of  war  were  enforced 
by  the  Amphyctional  Council,  which,  as  a  religious  institution, 
had  jurisdiction  over  international  violations  of  religious  laws 
and  customs, 

IQ.  International  Intercourse  and  Laws  of  the  Romans. — 
As  to  the  Romans — in  the  first  period  of  her  history,  when 
Rome  was  one  of  several  petty  states  on  the  Italian  peninsula, 
the  practice  of  Rome  in  her  external  relations  shows  customs 

»  Walker,  "History  of  the  Law  of  Nations,"  pp.  40,  4L 

'  Wheaton,  "History  of  the  Law  of  Nations,"  Introd.,  p.  14. 


26  INTRODUCTORY 

and  rules  somewhat  similar  to  those  existing  in  the  Greek 
countries.  The  guest  tie  existed  in  Rome  as  in  other  coun- 
tries of  the  same  era.  "  Not  only  did  the  Roman  Senate," 
says  Walker,  "  enter  into  treaties  upon  terms  of  equality  with 
Tarentines  and  Samnites,  not  only  were  foreigners  from  time 
to  time  freely  admitted  to  Latin  or  even  to  Roman  civic  rights, 
but  the  Roman  magistrates  directly  provided  for  the  enforce- 
ment at  Rome  of  the  legal  rights  of  the  alien  visitor."  All 
foreign  sojourners  in  Rome  were  under  a  system  of  equity  and 
law  known  as  the  Jus  Gentium,  which  included  what  is  now 
known  as  private  international  law,  and  also  rules  which  are 
now  recognized  as  coming  within  the  scope  of  public  inter- 
national law. 

An  assault  upon  an  ambassador  or  herald  was  punishable 
under  the  Jus  Gentium.  Envoys  of  Tarquin  who  were  involved 
in  a  conspiracy,  when  their  fellow  conspirators  were  arrested, 
were  themselves  allowed  to  go  free  under  the  Jus  Gentium. 
Although  this  law  in  its  public  meaning  approaches  our  modern 
international  law,  yet,  as  Walker  well  says,  it  "  was  at  root  law 
universal;  the  foundation  of  the  system  was  community  of 
observance  by  men  of  whatsoever  nationality,  by  men  as  law- 
abiding  human  beings,  not  by  men  as  members  of  different 
bodies  public."  ^ 

In  regard  to  war  the  Romans  had  a  system  of  rules  known 
as  the  Jus  Fetiale,  which  covered  the  declaration  of  war,  the 
conclusion  of  peace,  and  the  negotiation  of  treaties.  Unlike 
some  modern  states  that  allow  at  times  selfish  interests  to 
dominate,  whether  they  are  individual  or  national,  the  viola- 
tion of  formal  conventions  or  treaties  was  considered  by  all 
right-thinking  Romans  as  a  breach  of  sacred  obligations  and 
a  proper  cause  for  divine  resentment. 

But  notwithstanding  this  fidelity  to  obligations  the  Romans 
in  their  war  operations  were  cruel  and  unscrupulous.  Their 
operations  of  devastation  spared  neither  vegetables  in  growth 
^  Walker,  "History  of  the  Law  of  Nations,"  vol.  I,  pp.  45,  46. 


SOURCES  OF  INTERNATIONAL  LAW  27 

nor  trees  bearing  fruit.  As  a  result  of  victory  over  the  enemy 
the  Romans  "  confiscated  all  of  his  property,  movable  and 
immovable,  public  and  private,  doomed  him  and  his  posterity 
to  perpetual  slavery,  and  dragged  his  kings  and  generals  at  the 
chariot-wheels  of  the  conqueror,  thus  depressing  an  enemy  in 
his  spirit  and  pride  of  mind,  the  only  consolation  he  has  left 
when  his  strength  and  power  are  annihilated."  ^ 

Walker,  in  discussing  the  law  of  war  of  the  Roman,  says: 
"  The  Romans  of  the  Augustan  age  nevertheless  ascribed  to 
their  ancestors  a  certain  Jus  Belli,  or  law  of  war,  which  at  any 
rate  set  a  bound  to  absolutely  unlimited  savagery.  When  the 
treacherous  tutor  of  the  sons  of  the  leading  men  of  Falerii  led 
his  charges  into  the  camp  of  the  Roman  besiegers,  Camillus 
declared,  according  to  Livy,  that  whilst  between  the  Falerians 
and  Romans  there  did  not  exist  the  form  of  society  established 
by  human  compact  there  did  and  ever  would  exist  that  im- 
planted by  nature.  '  There  are,  he  said,  laws  of  war  as  well  as 
of  peace  and  we  have  learned  not  less  justly  than  bravely.' 
And  the  traitor,  stripped  and  with  hands  bound  behind  his 
back,  was  handed  over  to  the  boys  to  be  driven  back  into 
Falerii  by  rods  supplied  by  the  Roman  hero.  It  was  this  con- 
duct which,  according  to  the  historian,  induced  the  Falerians  to 
make  peace,  they  being  conquered  by  justice  and  good  faith."  ^ 

The  international  usage  of  the  Roman  Empire  was  gen- 
erally the  same  as  that  of  the  republic,  and  the  Roman  was  both 
a  cruel  soldier  and  a  man  of  laws.  Jus  Belli  and  Jus  Fetiale 
still  existed  in  the  frontier  wars  of  the  Romans,  while  Jus  Gen- 
tium was  continued  both  as  the  universal  law  and  as  "  Roman 
equity,  to  be  employed  in  the  moulding  by  Grotius  and  his  suc- 
cessors of  the  international  law  of  to-day."  ^ 

20.  The  Dark  and  Middle  Ages. — In  the  Dark  Ages,  be- 
tween 476  A.  D.  and  800  A.  D.,  but  few  attempts  were  made 

'  Wheaton,  "History  of  the  Law  of  Nations,"  p.  25. 

*  Walker,  "History  of  the  Law  of  Nations,"  vol.  I,  p.  49. 

•  Walker,  "History  of  the  Law  of  Nations,"  vol.  I,  p.  59. 


28  INTRODUCTORY 

to  revive  and  introduce  anything  like  the  reign  of  law,  order, 
and  justice.  "  The  Goths,  Vandals,  and  Thuringians,  like  the 
Vikings  of  the  north  in  later  days,  burned,  pillaged,  and  slew 
without  mercy.  They  ravaged  fields,  uprooted  vines,  cut 
down  olive-trees  and  burned  without  distinction  all  buildings 
sacred  or  profane,  leaving  their  track  behind  them  in  smoul- 
dering ruins.  .  .  .  They  slew  in  attack  alike  priest  and  lay- 
man, man  and  woman,  and  put  to  death  their  prisoners  in  the 
most  cruel  fashion.  .  .  .  Even  after  the  formal  adoption  of 
Christianity  the  war  practice  of  the  barbarian  conquerors  was 
more  than  brutal."  ^ 

The  vestiges  of  civilization  remained  only  on  the  eastern 
seaboard  of  the  Mediterranean  and  in  the  West  with  the 
church,  which  at  this  juncture,  historians  declare,  alone  saved 
civilization  in  Europe.  In  the  midst  of  wars  priests  like 
Gregory  of  Tours  cried  out  continually  against  every  form  of 
cruelty,  and  happily  not  always  in  vain. 

The  Saracen  invasion  of  Europe  in  713  brought  a  new 
element  into  European  civilization,  but  with  a  code  of  war 
and  peace  more  advanced  and  more  humane  than  an}i;hing 
existing  on  that  continent  in  their  times.  With  the  corona- 
tion of  Charlemagne  by  Pope  Leo  III  in  A.  D.  800  the  Dark 
Ages  may  be  said  to  come  to  a  close,  and  the  name  of  the 
Roman  Empire  and  Emperor  was  revived,  and  also  much  of  the 
reality  of  imperial  control.  With  it  came,  however,  the  age 
of  feudalism,  which  was  practically  contemporaneous  with  the 
Middle  Ages.  Under  the  successors  of  Charlemagne  it  pre- 
vailed throughout  the  civilized  world.  It  lasted  until  the  fif- 
teenth century  and  was  both  a  system  of  land  tenure  and  a 
system  of  government.  Interfeudal  intercourse  was  again 
controlled  by  brute  force  or  somewhat  regulated  violence. 
Notwithstanding,  however,  the  conflict  and  troubles  in  which 
the  papacy  was  involved,  the  Roman  Church  never  ceased  to 
stand  for  peace  in  these  times  of  feudalism  and  brutal  force 
1  Walker,  "  History  of  the  Law  of  Nations,"  vol.  I,  p.  65. 


'/ 


SOURCES  OF  INTERNATIONAL  LAW  29 

and  in  place  of  the  existing  violence  offered  the  ideals  of  Christian 
fraternity.  The  unity  of  the  Christian  religion  had  its  great 
influence  with  its  common  beliefs  and  forms  of  worship,  while 
the  Crusades  (109G-1291)  had  their  effect  as  shown  in  the  par- 
agraphs that  follow. 

"  In  the  courts  of  the  feudal  lords,"  says  Hill,  "  the  judgment 
of  God  was  sought  by  the  trial  of  battle,  where  litigants,  wit- 
nesses, and  judges  decided  the  case  by  physical  combat.  But 
in  the  ecclesiastical  courts  justice  was  determined  by  the 
code  of  canon  law,  which  invoked  the  principles  of  reason  and 
equity." 

"  If  the  popes  inspired  and  organized  the  Crusades,  thus 
appealing  to  the  use  of  force,  it  was  not  because  they  loved  war 
but  because  the  holy  places  were  in  danger.  .  .  .  While  the 
church  was  using  its  authority  to  ameliorate  the  abuses  of 
private  warfare  in  Europe  it  was  thus  elevating  the  power  of 
the  sword  by  the  control  of  noble  and  refining  principles  in 
Asia.  By  its  protection  of  the  helpless  and  the  innocent,  which 
was  made  the  ambition  of  the  Christian  knight,  chivalry  was 
at  the  same  time  ennobling  the  practice  of  arms  and  preparing 
the  forces  which  were  to  overthrow  feudalism  as  a  social  insti- 
tution. The  recognition  of  the  rights  of  the  humble,  the  asso- 
ciation of  the  Crusades  in  a  common  cause,  the  formation  of 
codes  of  honor,  the  emancipation  of  men  from  feudal  obliga- 
tions as  a  reward  for  their  heroic  deeds,  the  return  to  their 
places  of  origin  of  a  new  class  of  freemen  were  all  to  consti- 
tute a  new  leaven  for  the  reorganization  of  society."  ' 

Nevertheless,  the  warfare  of  the  Crusades,  especially  as  shown 
in  their  capture  of  Jerusalem  by  assault  in  1099,  exhibited  at 
times,  unfortunately,  that  brutality  which  then  pervaded  war- 
fare elsewhere  and  which  lasted  in  Europe  until  after  the 
time  of  Grotius  and  the  Thirty  Years'  War. 

The  revived  study  of  the  Roman  law,  the  results  of  the 
Crusades  as  a  whole,  the  influence  of  chivalry,  the  development 
»  Hill,  "History  of  Diplomacy,"  vol.  I,  pp.  271,  272. 


30  INTRODUCTORY 

of  commerce  and  its  codes  of  laws,  the  incidental  formation  of 
leagues  of  cities,  the  Reformation,  and,  finally,  the  discovery 
of  America  all  tended  toward  the  advance  of  civilization,  the 
improvement  of  the  intercourse  of  peoples,  and  the  develop- 
ment of  the  laws  of  nations. 

Notwithstanding  the  continued  savagery  of  war,  or  perhaps 
on  that  very  account,  attempts  were  being  made  from  time  to 
time  for  the  establishment  of  peace  by  means  of  the  "  Truce  of 
God"  to  restrict  private  warfare  and  by  means  of  associations 
or  peace  leagues  to  establish  the  "Peace  of  God."  More  effec- 
tive than  either  of  these  was  the  institution  in  France  of  the 
Quarantaine  le  Roy,  which  provided  for  an  enforced  lapse  of 
forty  days  between  the  outbreak  of  a  quarrel  and  the  begin- 
ning of  hostilities.  Apparently  the  modern  systems  of  peace 
societies  and  the  proposed  intervals  before  a  declaration  of 
war  are  only  revivals  from  the  ancient  days  and  not  especially 
the  creation  of  modern  enlightenment. 

But  the  supplanting  of  feudal  justice  by  the  adoption  of 
royal  tribunals  and  decrees  was  having  a  wholesome  effect 
toward  peace.  Writers  of  note  began  to  challenge  the  atten- 
tion of  the  educated  by  opposition  to  the  supremacy  of  any 
world  power  and  by  condemnation  of  the  inhumanity  of  ex- 
isting warfare.  The  ideas  of  the  territorial  sovereignty  of  in- 
dividual rulers  and  nations,  the  legal  equality  of  states,  and  the 
question  of  the  balance  of  power  and  the  equilibrium  of  Euro- 
pean forces  began  to  be  discussed  and  was  established,  in  fact, 
by  the  leading  municipalities  of  Italy.  The  forerunners  of 
Grotius  were  having  their  audience  and  the  times  were  almost 
ripe  for  Grotius  himself. 

21.  The  Predecessors  of  Grotius. — Among  the  predecessors 
of  Grotius  were  a  number  of  writers  who  discussed  matters 
directly  and  indirectly  that  are  now  found  comprised  within 
modern  international  law.  Among  them  were  Legnano 
(1360);  Christine  of  Pisa,  a  woman  born  in  Venice  in  1363; 
Machiavelli  (1469-1527);  Victoria,  a  Dominican  monk  (1480- 


SOURCES  OF  INTERNATIONAL  LAW  31 

1549),  whose  works  were  published  in  1557;  Bodin  (1530-96); 
Ayala  (1548-84);  Suarez  (1548-1617);  and  Gentilis,  born  in 
1552.  The  writers  just  mentioned  were  philosophers,  theolo- 
gians, and  humanitarians,  excepting  the  famous  jMachiavelli, 
an  Italian  statesman  about  whose  position  there  has  been 
much  debate.  His  work,  "The  Prince,"  published  after  his 
death,  treated  of  the  policy  of  rulers  and  has  been  the  cause 
of  much  disrepute  to  his  name  in  later  days.  He  condemned 
neutrality,  for  instance,  in  wars  on  the  ground  that  it  was  more 
profitable  to  declare  for  one  side  or  the  other.  Victoria,  in 
1557,  disputed  the  claim  of  the  papacy  for  world  temporal 
power,  while  Francisco  Suarez,  as  will  be  seen,  advanced  a 
complete  philosophic  theory  of  international  law. 

This  wTiter,  Suarez,  gave  in  his  work,  published  in  1612,  an 
admirable  statement  of  the  conditions  that  rendered  necessary 
the  foundation  and  existence  of  international  law  among  states 
and  communities.  Upon  this  matter  he  said:  "The  human 
race,  however  divided  into  various  peoples  and  kingdoms,  has 
always  not  only  its  unity  as  a  species  but  also  a  certain  moral 
and  quasi-political  unity,  pointed  out  by  the  natural  precept 
of  mutual  love  and  pity  which  extends  to  all,  even  to  foreign- 
ers of  any  nation.  Wherefore,  although  every  perfect  state, 
whether  a  republic  or  a  kingdom,  is  in  itself  a  perfect  community 
composed  of  its  own  members,  still  each  such  state,  viewed  in 
relation  to  the  human  race,  is  in  some  measure  a  member  of 
that  universal  unity.  For  those  communities  are  never  singly 
so  self-sufficing  but  that  they  stand  in  need  of  some  mutual- 
aid  society  and  communion,  sometimes  for  the  improvement  of 
their  condition  and  their  greater  commodity,  but  sometimes 
also  for  their  moral  necessity  and  need,  as  appears  by  experi- 
ence. For  that  reason  they  are  in  need  of  some  law  by  which 
they  may  be  directed  and  rightly  ordered  in  that  kind  of  com- 
munion and  society.  And,  although  this  is  to  a  great  extent 
supplied  by  natural  reason,  yet  it  is  not  so  supplied  sufficiently 
and  immediately  for  all  purposes,  and  therefore  it  has  been 


32  INTRODUCTORY 

possible  for  particular  laws  to  be  introduced  by  the  practice  of 
those  same  nations.  For  just  as  custom  introduces  law  in  a 
state  or  province,  so  it  was  possible  for  laws  to  be  introduced 
in  the  whole  human  race  by  the  habitual  conduct  of  nations. 
And  that  all  the  more  because  the  points  which  belong  to  this 
law  are  few  and  approach  very  nearly  to  natural  law,  and  being 
easily  deduced  from  it  are  useful  and  agreeable  to  nature,  so 
that  although  this  law  cannot  be  plainly  deduced  as  being 
altogether  necessary  in  itself  to  laudable  conduct,  still  it  is 
very  suitable  to  nature  and  such  as  all  may  accept  for  its  own 
sake."  1 

The  most  famous  of  the  predecessors  of  Grotius,  however, 
was  Albericus  Gentilis,  an  Italian  Protestant  jurist,  who  left 
Italy  some  little  time  after  his  graduation  at  Perugia  and 
found  his  way  to  England,  and  was  while  there  appointed 
professor  of  civil  law  at  Oxford  in  1587.  His  first  work  dealt 
with  the  history  of  legation.  In  1588  and  1589  he  published 
in  part  his  best-known  work:  "De  Jure  Belli."  His  third  book, 
published  in  1613,  treated  of  the  laws  of  neutrality,  a  subject 
little  considered  at  this  time  while  its  treatment  by  him  was 
not  only  far  in  advance  of  his  time  but  also  more  advanced 
than  any  discussion  made  by  Grotius  himself  upon  the  matter. 
Walker  declares  that  "his  resolutions  are  well-nigh,  if  not  in 
every  case,  identical  with  the  decisions  of  modern  interna- 
tional law."  2  In  its  framework  the  principal  work  of  Gen- 
tilis, "De  Jure  Belli,"  was  followed  as  a  model  by  Grotius 
himself. 

22.  Grotius,  the  founder  of  the  Science  of  Modem  Inter- 
national Law. — The  great  exponent  of  the  principles  of  modern 
international  law,  and  the  first  to  arrest  the  attention  of  the 
whole  civilized  world  upon  the  matter,  was  Hugo  Grotius. 
His  great  work  upon  the  subject,  written  in  Latin,  bore  the  title, 
"De  Jure  Belli  ac  Pacis,"  and  was  published  in  1625. 

1  Quoted  in  Westlake's  "Principles,"  etc.,  pp.  26,  27. 

2  Walker,  "History  of  the  Law  of  Nations,"  p.  274. 


SOURCES  OF  INTERNATIONAL  LAW  33 

As  an  evidence  of  its  far-reaching  influence,  it  may  be  stated 
that  at  least  forty-five  Latin  editions  were  issued  prior  to  1748 
and  that  it  had  been  translated  into  all  of  the  leading  modern 
languages  by  the  close  of  the  seventeenth  century.  It  has 
been  frequently  mentioned  as  an  historical  incident  that  Gus- 
tavus  Adolphus  of  Sweden  carried  a  volume  of  Grotius  as  his 
constant  camp  companion  during  the  Thirty  Years'  War,  and 
that  after  the  war  the  Elector  Palatine  established  a  chair  of 
natural  law  at  Heidelberg,  selecting  for  its  occupant  Puffen- 
dorf,  a  well-known  disciple  of  Grotius. 

Hugo  Grotius  was  born  at  Delft,  Holland,  in  1583,  and,  en- 
tering the  University  of  Ley  den  at  the  age  of  twelve  years, 
took  his  degree  of  doctor  of  laws  three  years  afterward  at 
Orleans,  France.  As  a  result  of  one  of  the  politico-religious 
disputes  of  his  country,  he  was  involved  in  the  fall  of  Olden- 
barneveldt  and  received  a  sentence  of  perpetual  imprisonment 
in  1619.  Escaping  in  1621  through  the  assistance  of  his  de- 
voted wife,  he  went  to  Paris,  where  he  published  his  great  work. 
In  1634  he  was  appointed  Swedish  minister  to  France.  In 
1645  he  retired  from  this  position,  and  died  shortly  afterward 
at  Rostock,  having  suffered  shipwreck  on  the  Pomeranian 
coast.     He  is  buried  in  the  principal  church  of  his  native  city. 

Grotius  was  a  profound  as  well  as  a  versatile  scholar,  and 
brought  to  his  writings  not  only  great  learning  but  a  deep  and 
passionate  love  of  justice  and  humanity.  He  was  excited,  he 
states  in  his  preface,  to  the  preparation  of  his  work  by  the 
uninformed  and  unhappy  state  of  the  public  opinion  current 
in  his  time  on  the  subject  of  the  law  of  nations,  and  by  the 
wild  lawlessness  and  barbarity  in  war  practice  which  was  the 
natural  outcome  of  the  popular  darkness. 

Walker  declares  that  "it  was  the  task  of  Grotius  to  show 
that  there  was  a  law  at  once  of  peace  and  war,  that  men  were 
not,  as  members  of  different  states,  released  from  all  control 
in  tlieir  mutual  dealings,  that  justice  was  not  silent  amidst  the 
clash  of  arms;   to  prove,  in  brief,  the  existence  of  a  definitely 


34  INTRODUCTORY 

ascertainable  and  active  law  of  nations.  In  '  De  Jure  Belli  ac 
Pacis'  he  stands  forth  as  the  prophet  of  justice  to  an  age  of 
lawlessness."  ^ 

The  argument  and  principles  advanced  in  this  work  are 
based  upon  the  law  of  nature,  which  Grotius  defines  to  be 
"the  dictate  of  right  reason,  indicating  that  any  act,  from  its 
agreement  or  disagreement  with  the  rational  and  social  nature 
(of  man)  has  in  it  a  moral  turpitude  or  a  moral  necessity,  and, 
consequently,  that  such  act  is  forbidden  or  commanded  by 
God,  the  author  of  nature."  From  the  law  of  nature  he  largely 
deduces  the  necessary  authority  for  the  law  of  nations,  which 
in  turn  he  defines  as  "that  which  regards  the  mutual  relations 
of  several  peoples  or  rulers  of  peoples,  whether  it  proceed  from 
nature  ...  or  be  understood  by  custom  and  tacit  compact."  ^ 

Some  of  the  principles  and  customs  of  Grotius  are  now  ob- 
solete. His  work  lacks  a  proper  treatment  of  the  laws  of  neu- 
trality, but  in  the  elaboration  of  the  great  primary  principles 
of  international  law  he  goes  far  beyond  his  predecessors,  while 
the  doctrines  of  the  independence  and  equality  of  states  as  de- 
veloped by  him  are  among  the  fundamental  rights  of  states 
universally  accepted  at  the  present  day.  Modern  international 
law,  then,  may  be  said  to  begin  as  a  science  with  the  work  of 
Hugo  Grotius. 

It  has  been  said  that  it  was  reserved  for  Grotius  to  combine 
the  principles  of  his  forerunners  into  a  system  which  was  so 
acceptable  to  the  mind  of  Europe  that  thought  was  changed 
into  action.^  That  this  was  the  case  in  relation  to  the  relations 
and  status  of  states  I  have  just  said.  It  had  also  powerful 
effect  upon  the  savagery  and  brutality  of  warfare. 

Sir  Henry  INIaine  in  one  of  his  lectures  upon  international 
law  mentions  the  following  incident  with  which  I  will  close 
this  topic : 

"At  about  the  middle  of  his  reign  Louis  XFV  of  France 

» Walker,  "History  of  the  Law  of  Nations,"  pp.  284,  285. 

*  Whewell's  translation  of  Grotius.  ^  Lawrence's  "  Principles,"  p.  30. 


SOURCES  OF  INTERNATIONAL  LAW  35 

adopted  two  measures  by  which  he  was  thought  to  have  car- 
ried the  severity  of  war  to  the  farthest  point.  He  devastated 
the  Palatinate,  expressly  directing  his  officers  to  carry  fire  and 
sword  into  every  corner  of  the  province,  and  he  issued  a  notice 
to  the  Dutch,  with  whom  he  was  at  war,  that,  as  soon  as  the 
melting  of  the  ice  opened  the  canals,  he  would  grant  no  more 
quarter  to  his  Dutch  enemies.  The  devastation  of  the  Palat- 
inate has  become  a  proverb  of  savageness  with  all  historians, 
though  fifty  years  earlier  it  might  at  most  have  been  passed  as 
a  measure  of  severity,  or  might  have  even  been  defended; 
but  the  proclamation  to  the  Dutch  called  forth  a  burst  of  exe- 
cration from  all  Europe,  and  the  threat  to  refuse  quarter  was 
not  acted  upon.  The  book  of  Grotius  was  making  itself  felt, 
and  the  successors  of  Grotius  assure  us  that  it  was  his  authority 
which  deterred  the  French  king  and  the  French  generals  from 
the  threatened  outbreak."  ^ 

TOPICS   AND   REFERENCES 

1.  The  Original  Motives  and  Causes  of  International  Law — 

Grotius,  Whewell's  translation,  pars.  7-8,  16,  18,  and  22-23. 
Vattel,  pars.  10-12.  Lawrence,  "International  Problems," 
chap.  III. 

2.  The  Sources  of  International  Law — 

Hall,  6th  ed.,  5-13.  Maine,  "International  Law,"  lect.  I.  Snow, 
2d  ed.,  par.  3.     Baker,  "First  Steps,"  etc.,  19-23. 

3.  The  Early  Intercourse  of  Peoples — 

Breasted,  "History  of  Egypt."  Laurent,  "Etudes  sur  I'histoire  de 
I'humanite."  Walker,  "History  of  the  Law  of  Nations,"  1899, 
1, 20-64.  "International  Law  and  Diplomacy  in  Ancient  China" 
("The  Lore  of  Cathay"),  Martin. 

4.  The  Code  of  Manu — 

"The  Ordinances  of  Manu,"  translated  by  Burnell  and  Hopkins, 
London,  1891. 

5.  The  Hebrews — 

The  books  of  Deuteronomy,  Exodus,  Judges  1-7. 
1  Maine's  "Int.  Law,"  p.  23. 


36  INTRODUCTORY 

6.  Other  Intercourse  of  the  Ancients — 

Montesquieu,  "Esprit  des  lois,"  bk.  XXI,  chap.  II.  Laurent, 
"Etudes  de  I'humanite,"  477,  etc.  Budge,  "History  of  Egypt," 
48,  etc.     Brugsch,  "Egypt  under  the  Pharaohs,"  2d  ed. 

7.  International  Laws  and  Usages  of  the  Greeks — 

Greenidge,  "Greek  Constitutional  History."  Phillipson,  "Interna- 
tional Law  and  Customs  of  the  Greeks  and  Romans."  Mahaffy, 
"Social  Life  of  the  Greeks." 

8.  International  Laws  and  Intercourse  of  the  Romans — 

Phillipson,  "International  Law  and  Customs  of  the  Greeks  and 
Romans."  Ortolan,  "History  of  Roman  Law,"  Cutler's  ed., 
1896.     Hill,  "History  of  European  Diplomacy,"  vol.  I. 

9.  The  Dark  and  Middle  Ages- 

Walker,  "History  of  the  Law  of  Nations,"  vol.  I.  Bordwell,  "Law 
of  War."     University  of  Pennsylvania  translation.     Reprints. 

10.  The  Predecessors  of  Grotius — 

Westlake,  "International  Law,"  1894,  chaps,  II  and  III.  Whea- 
ton,  "History  of  the  Law  of  Nations."  Holland,  "Studies  in 
International  Law,"  1898. 

11.  Grotius — 

Hugo  Grotius,  "De  Jure  Belli  ac  Pacis,"  1625,  translated  by 
Whewell,  Cambridge,  1853.  Westlake,  "Principles  of  Inter- 
national Law,"  chap.  III.  Walker,  "Science  of  International 
Law,"  chap.  IV. 


CHAPTER  III 
THE    DEVELOPMENT   OF   MODERN    INTERNATIONAL   LAW 

23.  The  Peace  of  Westphalia  and  the  Thirty  Years'  War. 
—The  peace  of  Westphalia  in  1648  closed  the  Thirty  Years' 
War,  the  worst  of  the  wars  of  comparatively  modern  times. 
Notwithstanding  the  barbarity  of  previous  wars,  especially 
those  in  the  Low  Countries,  which  were  in  all  probability  those 
that  influenced  Grotius  in  his  cry  for  humanity,  and  against 
the  horrors  that  accompanied  war,  it  must  be  conceded  that 
for  duration  and  extent,  for  devastation,  for  barbarity,  for 
sacrifice  of  life,  and  for  horrible  accompaniments,  there  has 
been  nothing  to  exceed  the  war  of  thirty  years  in  Europe. 

The  close  of  the  Dutch  War  in  1609,  from  exhaustion,  was 
only  too  soon  followed,  in  1618,  by  this  war,  with  its  ferocity 
and  famine.  But  notwithstanding  its  accompaniments,  its  re- 
sults were  of  great  moment. 

"  That  war,"  says  Walker,  "  was  destined  to  do  a  mighty 
work.  It  was,  in  one  view,  a  mere  contest  for  territorial  inde- 
pendence of  German  princes  against  the  empire;  in  another, 
it  was  a  revolt  of  the  smaller  states  against  Austro-Spanish 
supremacy,  a  war  of  the  balance  of  power;  in  a  third,  it  was  a 
struggle  of  Catholicism  and  Protestantism,  of  the  old  faith 
against  the  new,  a  crusade  of  the  Jesuit  against  the  Calvinist 
and  the  Lutheran.  But  it  had  yet  another  and  a  grander 
aspect.  It  was,  on  giant  lines,  the  war  of  liberty  of  thought 
against  authority,  of  individualism  against  oppression,  albeit 
men  were  content  to  fight  for  the  freedom  of  the  prince  before 
the  freedom  of  the  people,  for  the  religious  local  option  of  the 
ruler  before  universal  toleration."  ^ 

1  Walker,  "Science  of  Int.  Law,"  pp.  89,  90. 
37 


38  INTRODUCTORY 

But  at  what  a  cost!  Germany  was  reduced  in  population 
from  sixteen  millions  to  four  millions.  A  state  of  famine  was 
caused  which  drove  men  and  women  to  cannibalism.  "  Twelve 
hours  after  the  fall  of  Magdeburg  20,000  men,  women,  and 
children  lay  charred  and  blackened  corpses  amidst  the  ashes 
of  the  hapless  city.  .  .  .  During  the  siege  of  Leipsic  Tilly's 
soldiers  exercised  the  wildest  licentiousness  and  cruelty  in  the 
surrounding  towns;  men  and  women  were  stripped,  scourged, 
cropped,  yoked,  and  submitted  to  such  freaks  of  unrestrained 
barbarity  as  sicken  the  heart  by  their  bare  recital."  ^ 

Besides  the  political  results  of  the  Thirty  Years'  War  as  for- 
mulated in  the  treaties  of  Miinster  and  Osnaburg  under  the 
name  of  the  peace  of  Westphalia,  these  treaties  and  this  peace 
opened  up  the  new  school  of  jurists,  the  disciples  of  Grotius, 
in  continental  Europe.  It  marked  also  the  period  of  the  es- 
tablishment of  permanent  legations,  which  tended  toward  pa- 
cific relations  among  the  European  states.  In  a  larger  sense  it 
has  been  well  said  that  the  peace  of  Westphalia  sang  the  death- 
knell  of  world  empire  as  well  as  of  world  church,  while  inter- 
national law  as  a  modern  science  resting  upon  the  territorial 
sovereignty  of  states  commences  its  history  with  the  conclu- 
sion of  its  treaties.  The  terms  of  this  peace  were  constantly 
renewed  and  confirmed  in  all  treaties  of  peace  of  the  conti- 
nental states  of  Europe  until  the  outbreak  of  the  French 
Revolution. 

24.  The  Successors  of  Grotius. — The  principal  writers  and 
jurists  dealing  with  public  international  law  who  may  be  termed 
the  successors  of  Grotius  were  Zouche  (1590-1660),  Puffendorf 
(1632-94),  Thomasius  (1655-1728),  Cornelius  Bynkershoek, 
who  wrote  his  more  famous  books  from  1702-37,  and  Vattel, 
whose  career  extended  from  1714  to  1767. 

The  most  celebrated  writers  among  the  immediate  succes- 
sors of  Grotius  were  the  two  last  mentioned,  Bynkershoek  and 
Vattel.  The  most  famous  and  important  work  of  Bynker- 
1  Walker,  "Science  of  Int.  Law,"  p.  247. 


DEVELOPMENT  OF  MODERN  INTERNATIONAL  LAW    39 

shoek  was  the  "Questiones  Juris  Publici."  Of  this  work 
Wheaton,  no  mean  authority  himself,  says  that: 

"  In  this  work  Bynkershoek  treats  the  important  subject 
of  beUigerent  and  neutral  relations  with  more  completeness, 
precision,  and  fulness  of  practical  illustration  than  any  of  his 
predecessors  and,'  indeed,  it  may  be  said,  of  his  successors 
among  the  public  jurists.  He  is  the  first  writer  who  has  en- 
tered into  a  critical  and  systematic  exposition  of  the  law  of 
nations  on  the  subject  of  maritime  commerce  between  neutral 
and  belligerent  nations;  and  the  plan  which  he  adopted  was 
well  calculated  to  do  justice  to  the  subject."  ^ 

Vattel  was  also  one  of  the  most  distinguished  writers  among 
the  successors  of  Grotius.  He  was  a  Swiss  writer,  a  disciple 
of  the  profound  German  philosopher  Wolff.  Vattel  treated 
especially  upon  the  primary  rights  and  duties  of  states  and 
also  laid  stress  upon  the  conventional  and  customary  side  of 
international  law,  which  he  largely  illustrated  from  the  history 
of  his  own  times.  His  books  are  among  the  classics  of  inter- 
national law.  Other  writers  of  a  still  later  date,  perhaps  worth 
mentioning,  were  Moser,  G.  F.  de  Martens,  the  earliest  of  three 
writers  of  the  same  name  upon  international  law  and  diplomacy, 
Hiibner,  a  Dane,  and  Lampredi,  an  Italian,  who  wrote  upon 
"Armed  Neutrality  "  in  1788.  It  can  be  said,  finally,  that 
although  the  successors  of  Grotius  show  various  tendencies  in 
treating  of  international  law,  some  reactionary,  others  more 
positive  in  their  teachings,  there  will  be  found,  on  the  whole, 
general  progress  and  substantial  agreement  in  their  writings. 

25.  From  the  Peace  of  Westphalia  until  the  Peace  of 
Utrecht. — This  period,  extending  from  1648  to  1713,  was  filled 
with  a  succession  of  wars  arising  from  the  ambition  of  Louis 
XIV.  They  were  closed  at  times  by  the  peace  of  Aix-la-Cha- 
pelle  in  1668,  of  Nimeguen  in  1678,  and  that  of  Ryswick  in 
1697.  These  treaties  of  peace  marked,  however,  little  more 
than  truces;  nevertheless,  upon  the  whole,  this  period  shows  a 
1  Wheaton,  "History  of  Law  of  Nations,"  p.  193. 


40  INTRODUCTORY 

progress  in  the  development  of  the  law  of  nations,  notwith- 
standing the  occasional  violations  in  its  practice. 

Among  the  principles  constantly  discussed  in  the  learned 
and  laborious  state  papers  of  these  times  was  that  of  interven- 
tion to  maintain  the  balance  of  power  in  Europe.  The  prin- 
ciple itself  was  then  generally  acknowledged,  but  as  a  not  un- 
usual thing  in  state  policy  the  question  of  its  application 
became  a  subject  for  disputes.  It  came  too  close  to  being  a 
question  of  interference  by  one  state  or  group  of  states  with 
the  internal  affairs  of  another  state  not  to  be  one  of  danger 
to  pacific  relations.  In  one  shape  or  another  the  question  of 
the  balance  of  power  may  be  said  to  exist  in  Europe  to  the  pres- 
ent day. 

During  the  period  under  discussion  the  laws  of  maritime  war- 
fare became  more  generally  known  and  followed.  During  the 
wars  in  the  Low  Countries,  however,  a  Spanish  archduke 
hanged  twelve  sick  Dutch  soldiers  made  prisoners  in  a  stranded 
vessel  on  the  plea  that  they  were  taken  at  sea,  where  there 
were  no  laws  of  arms  to  be  observed.^ 

But  matters  had  improved  since  then,  and  it  can  be  said  at 
this  time  of  the  period  under  discussion  that  the  doctrine  of 
the  freedom  of  the  sea  had  been  largely  conceded,  notwith- 
standing the  writings  of  Selden  to  the  contrary,  while  fixed 
rules  were  formulated  as  to  the  right  of  visit  and  search,  block- 
ade and  contraband. 

Much  was  due  in  this  subject  to  the  survival  of  the  early 
maritime  codes  already  referred  to.  Of  one  of  these,  Wheaton 
says :  "  The  testimony  of  Grotius  and  other  public  jurists  of 
the  seventeenth  and  the  earlier  part  of  the  eighteenth  century 
shows  that  the  rules  relating  to  maritime  warfare  adopted  by 
the  consolato  del  mare  as  early  as  the  latter  part  of  the  four- 
teenth century  were  still  recognized  in  practice  by  the  prin- 
cipal European  states,  with  certain  exceptions  contained  in 
the  ordinances  of  France  and  Spain,  during  the  different  mar- 

» "Grotius,"  p.  398. 


DE\^LOPMENT  OF  MODERN  INTERNATIONAL  LAW    41 

itime  wars  which  took  place  between  the  peace  of  the  Pyrenees 
in  1659  and  the  peace  of  Utrecht,  1713.  These  rules,  then,  may 
be  considered  as  forming  the  general  maritime  law  of  Christen- 
dom, independent  of  these  exceptions  and  of  others  introduced 
between  particular  nations  by  special  treaties  forming  the  con- 
ventional law  between  the  contracting  parties."  ^ 

26.  From  the  Peace  of  Utrecht  to  the  French  Revolution.— 
This  period,  extending  from  1713  to  1789,  was  marked  by  the 
rise  of  Prussia  to  a  power  of  the  first  class,  the  war  of  indepen- 
dence on  the  part  of  British  American  colonies  and  the  subse- 
quent recognition  of  their  independence  by  all  nations,  the 
entry  of  Russia  into  the  family  of  nations,  the  first  partition  of 
Poland,  and  the  beginning  of  the  French  Revolutionary  and 
Napoleonic  era. 

The  peace  of  Utrecht,  among  other  matters,  sanctioned  once 
more  "the  legitimacy  of  the  English  Revolution  of  1688  and 
guaranteed  the  Protestant  succession  to  the  British  crown  in 
the  House  of  Hanover,  as  it  had  been  settled  by  Act  of  Parlia- 
ment. The  cause  of  the  Stuarts  was  thus  finally  abandoned 
by  France  and  \dth  it  the  principle  of  hereditary,  indefeasible 
right  on  which  it  was  grounded.  The  treaties  of  Utrecht  were 
constantly  renewed  and  confirmed  from  this  time  forth  in  every 
successive  treaty  of  peace  between  the  great  continental  and 
maritime  powers  until  the  peace  of  Luneville,  in  1800,  and  that 
of  Amiens,  in  1803,  when  they  were,  for  the  first  time, 
omitted."  2 

The  two  maritime  wars  that  were  terminated  by  the  treaties 
of  Aix-la-Chapelle,  1748,  and  of  Paris,  1763,  caused  many 
maritime  questions  to  arise.  Each  belligerent  adhered  to  its 
own  views  of  the  laws  of  nations  in  its  conduct  toward  neutrals. 
France,  by  the  ordinance  of  October  21,  1744,  exempted  from 
capture  neutral  vessels  with  enemy's  goods,  confiscating  the 
goods  of  the  enemy  and  restoring  the  vessel  with  the  rest  of 

*  Wheaton,  "History  of  the  Law  of  Nations,"  pp.  106,  etc. 
'  Wheaton,  "History  of  the  Law  of  Nations,"  p.  87. 


42  INTRODUCTORY 

the  cargo,  contraband  excepted.     But  two  remarkable  restric- 
tions upon  foreign  commerce  were  revived  to  the  effect  that — 

1.  All  goods  the  growth,  produce,  or  manufacture  of  the 
enemy's  country  were  made  liable  to  capture  and  confiscation 
except  in  neutral  vessels  navigating  directly  from  the  enemy's 
port  where  the  goods  were  laden  to  a  port  of  their  own  country. 

2.  Neutral  vessels  were  prohibited  from  carrying  a  cargo 
from  one  port  to  another  of  the  enemy,  whatever  might  be  the 
origin  of  the  goods  or  to  whomever  they  might  belong. 

From  these  rules  Denmark,  Spain,  and  Sweden  were  exempt. 

The  English  practice,  as  given  by  their  commissioners  in 
1754,  was  "that  the  law  of  nations  has  established  that  the 
goods  of  an  enemy  on  board  the  ship  of  a  friend  may  be  taken." 
"That  the  lawful  goods  of  a  friend  on  board  of  the  ship  of  an 
enemy  ought  to  be  restored."  ^ 

Another  rule  laid  down  by  England  at  this  period  was  known 
as  the  Rule  of  the  War  of  1756,  which  forbade,  in  war  time, 
neutrals  to  engage  in  the  coasting  trade  of  a  belligerent,  or  in 
any  other  trade  which  was  not  permitted  to  them  in  time  of 
peace.  The  desirability  of  this  rule,  whose  correctness  was 
supported  by  many  English  and  some  American  jurists,  will 
be  discussed  later. 

In  1780  Russia  proclaimed  the  maritime  principles  of  the 
armed  neutrality,  which  were: 

(1)  That  all  neutral  vessels  may  freely  navigate  from  port 
to  port  and  on  the  coasts  of  nations  at  war. 

(2)  That  goods  belonging  to  the  subjects  of  powers  at  war 
shall  be  free  in  neutral  vessels  except  contraband  of  war. 

(3)  That  contraband  articles  shall  be  restricted  to  muni- 
tions of  war. 

(4)  That  the  denomination  of  a  blockaded  port  is  to  be  given 
only  to  one  which  has  the  enemy  vessels  stationed  sufficiently 
near  to  cause  an  evident  danger  to  the  attempt  to  enter."  * 

*  Wheaton,  "History  of  the  Law  of  Nations,"  pp.  210,  etc. 
2  Wheaton,  "History  of  the  Law  of  Nations,"  pp.  297,  298. 


DEVELOPMENT  OF  MODERN  INTERNATIONAL  LAW    43 

These  principles  were  approved  by  France,  Austria,  and  the 
United  States  and  were  incorporated  into  the  conventions  of 
the  league  of  armed  neutrality  of  1780. 

27.  From  the  Outbreak  of  the  French  Revolution  to  the 
Congress  of  Vienna. — ^The  outbreak  of  the  French  Revolution 
followed  closely  the  end  of  the  American  Revolution  and  the 
consequent  attainment  of  the  independence  of  the  United 
States,  toward  which  the  French  nation  so  largely  contributed. 
The  French  Revolutionary  government  in  rapid  succession 
adopted  declarations  and  laws  against  wars  of  conquest  and 
intervention  and  enunciating  the  principles  of  the  Golden  Rule 
and  others  tending  toward  the  highest  ideals.  These,  however, 
in  due  time  were  set  aside  both  in  practice  and  principle. 

Entering  into  an  era  of  conquest,  the  Revolution  was  followed 
by  the  regime  of  Napoleon  (1804-14)  and  the  wars  connected 
\nih  his  name  and  rule.  To  meet  those  wars  of  aggression  and 
conquest,  various  European  coalitions  were  formed,  headed  by 
Great  Britain,  which  eventually  ended  in  his  downfall  and  the 
reduction,  practically,  of  France  to  her  original  boundaries, 
while  advantageously  reducing  the  number  of  the  German 
states  by  various  combinations. 

With  respect  to  the  effect  of  the  French  Revolutionary  and 
Napoleonic  wars  upon  international  law,  Wheaton  says:  "  This 
long-protracted  and  violent  struggle  was  too  often  marked  in 
its  course  by  the  most  flagrant  violations  of  the  positive  laws  of 
nations,  almost  always  accompanied,  however,  by  a  formal 
recognition  of  its  general  maxims,  the  violations  being  excused 
or  palliated  on  the  ground  of  overruling  necessity  or  the  exam- 
ple of  others  justifying  a  resort  to  retaliation.  This  mighty 
convulsion,  on  which  all  the  moral  elements  of  European  so- 
ciety seemed  to  be  mingled  in  confusion,  at  last  subsided,  leav- 
ing behind  it  fewer  traces  of  its  destructive  progress  than  might 
have  been  expected,  so  far  as  regards  a  general  respect  for  the 
rules  of  justice  acknowledged  by  civilized  communities  in  their 
mutual  intercourse."  ^ 

*  WheafxjD,  "History  of  the  Law  of  Nations,"  p.  422. 


44  INTRODUCTORY 

It  is  only  necessary  here  to  outline  the  systems  and  decrees 
of  both  contending  belligerents.  In  1793  England  and  Russia 
forbade  all  navigation  with  the  ports  of  France,  while  in  answer 
the  French  conventions  of  the  republic  directed  the  French 
fleet  to  capture  all  neutral  merchant  vessels  carrying  provisions 
or  goods  to  the  ports  of  the  enemy.  Napoleon  continued  this 
policy,  declaring  Great  Britain  to  be  in  a  state  of  blockade, 
and  decreed  that  all  vessels  sailing  to  and  from  any  British 
port  should  be  confiscated.  The  action  on  both  sides  was  re- 
peated and  incorporated  in  the  various  decrees  known  as  the 
Berlin  and  Milan  decrees  of  1806  and  1807  and  the  various 
British  orders  in  council. 

The  suffering  neutral  powers  protested.  The  United  States 
led  in  this  protest  and  opposition  in  1793,  when  Washington 
was  President,  and  became  the  advocate  of  neutral  rights  with 
lasting  effect  upon  the  policy  of  nations  in  war  time.  The 
Baltic  powers,  headed  by  Russia,  revived  the  armed  neutrality 
of  1780  in  the  second  league  of  armed  neutrality  of  1800, 
adding  an  article  in  regard  to  convoy,  which  continued  a  matter 
of  dispute  more  or  less  latent  until  settled  by  Articles  61  and  62 
of  the  declaration  of  London,  in  1909.  Most  of  the  questions 
resulting  from  the  Revolutionary  and  Napoleonic  wars  came 
up  for  settlement  in  the  general  congress  of  European  powers, 
which  met  at  Vienna  in  1815,  and  which  completed  the  arrange- 
ments for  the  pacification  of  Europe  and  the  restoration  of 
the  Continent  to  its  former  status  as  far  as  it  was  then  prac- 
ticable. 

28.  From  the  Congress  of  Vienna  to  the  Declaration  of 
Paris. — The  congress  of  Vienna  had  been  preceded  by  the 
treaties  of  peace  signed  at  Paris  in  1814  and  the  convention 
of  London  of  1814  established  between  Great  Britain  and 
Holland.  These  treaties  were,  to  a  great  extent,  ratified  by  the 
congress  of  Vienna. 

This  congress  marked  an  epoch  in  the  political  history  of 
Europe  and,  to  a  much  less  extent,  an  era  in  the  history  of  in- 


DEVELOPMENT  OF  MODERN  INTERNATIONAL  LAW    45 

ternational  law.  In  political  history  it  provided  for  the  union 
of  Norway  and  Sweden  and  Belgium  and  Holland;  it  neutral- 
ized Switzerland,  rearranged  Germany  into  a  loose  confedera- 
tion of  thirt\'-nine  states,  and  ratified  the  restoration  of  the 
old  dynasties  provided  for  by  the  treaty  of  Paris,  with  the 
exception  of  Sweden  and  Norway. 

So  far  as  international  law  was  concerned,  the  congress  of 
Vienna  established  the  grades  and  precedence  of  ambassadors, 
ministers,  and  other  envoys;  agreed  upon  the  freedom  of  cer- 
tain great  international  rivers  like  the  Rhine  and  the  Scheldt; 
established  general  principles  for  other  coriparian  states,  which 
was  extended  in  1S56  to  the  Danube;  and  placed  itself  on  rec- 
ord against  the  continuance  of  the  African  slave  trade. 

After  the  congress  of  Vienna,  Austria,  Prussia,  and  Russia 
formed  what  became  known  as  the  Holy  Alliance,  the  terms  of 
the  accompanying  declaration  and  articles  being  of  the  most 
elevated  character,  announcing  for  its  guidance  the  precepts 
of  justice.  Christian  charity,  and  peace.  France  and  England 
joined  in  this  alliance,  or  rather  in  the  concert  of  Europe  which 
arose  from  it  in  1818,  issuing  a  declaration  that  the  fundamental 
basis  of  the  union  was  their  intention  never  to  depart  from  the 
"strictest  observation  of  the  principles  of  the  rights  of  na- 
tions; principles  which  in  their  application  to  a  state  of  per- 
manent peace  can  alone  effectually  guarantee  the  independence 
of  each  government  and  the  stability  of  the  general  association." 

This  declaration  of  the  five  cabinets  was  soon  put  to  a  test. 
A  revolution  broke  out  in  Spain  against  the  reactionary  rule  of 
Ferdinand  VH;  Portugal,  Naples,  and  Piedmont  soon  followed. 
As  a  result  the  powers  of  the  Holy  Alliance  assembled  at  Trop- 
pau  December  8,  1820,  announcing  their  determination  to 
quell  these  dangerous  revolutions.  England  refused  to  join 
in  the  movement,  but  later  France  led  successfully  an  invasion 
in  Spain  against  the  new  government,  and  by  this  action  the 
revolutionary  movements  were  soon  put  down.  The  protocol 
of  Troppau  of  1820  was  not,  however,  signed  by  France  or 


46  INTRODUCTORY 

England.  The  latter  withdrew  from  the  alliance  and  declined 
to  join  the  congress  of  Verona  which  preceded  and  authorized 
the  armed  interference  of  France  in  Spain. 

The  Spanish  colonies  in  America  were,  in  the  meantime,  also 
in  revolution,  and  it  was  feared  that  an  extension  of  the  actions 
of  the  Holy  Alliance  would  be  made  to  America.  But  Great 
Britain  and  the  United  States  protested  against  the  right  of 
the  allied  powers  to  interfere  by  forcible  means  in  the  contest 
between  Spain  and  her  colonies  in  America.  The  British 
Government  declared  to  France  "  that  it  would  consider  any 
foreign  interference  by  force  or  menace  in  the  dispute  between 
them  as  a  motive  for  recognizing  the  latter  without  delay."  ^ 

29.  The  Enunciation  of  the  Monroe  Doctrine. — On  the  part 
of  the  United  States,  President  Monroe,  in  his  annual  message 
to  Congress  of  December  2,  1823,  declared  as  follows: 

"  The  American  continents,  by  the  free  and  independent 
condition  which  they  have  assumed  and  maintain,  are  hence- 
forth not  to  be  considered  as  subjects  for  future  colonization 
by  European  powers.  .  .  .  We  should  consider  any  attempt  on 
their  part  to  extend  their  system  to  any  portion  of  this  hemi- 
sphere as  dangerous  to  our  peace  and  safety.  With  the  existing 
colonies  or  dependencies  of  any  European  power  we  have  not 
interfered  and  shall  not  interfere.  But  with  the  governments 
who  have  declared  their  independence  and  maintained  it,  and 
whose  independence  we  have,  on  great  consideration  and  on 
just  principles,  acknowledged,  we  could  not  view  any  interpo- 
sition for  the  purpose  of  oppressing  them  or  controlling,  in 
any  other  manner,  their  destiny,  by  any  European  power,  in 
any  other  light  than  as  the  manifestation  of  an  unfriendly  dis- 
position toward  the  United  States.  .  .  ."  ^ 

This  is  the  statement  formally  asserting  what  is  now  known 
as  the  Monroe  Doctrine.  Whatever  may  be  said  as  to  its  extent 
in  growth  since  its  enunciation  by  Monroe,  its  present  neces- 

*  Wheaton,  "  History  of  the  Law  of  Nations,"  p.  520. 
•Richardson,  "Messages  and  Papers  of  the  Presidents,"  p.  218. 


DEVELOPMENT  OF  MODERN  INTERNATIONAL  LAW    47 

sity,  or  the  advisability  of  its  geographical  restriction,  it  must 
be  said  that  its  assertion  by  President  Monroe  as  a  policy  was 
both  timely  and  effective.  The  recognition  of  the  Latin- 
American  states  by  the  United  States  had  taken  place  the  pre- 
vious year  and  was  followed  by  Great  Britain  in  1825. 

It  can  be  seen  that  the  Monroe  Doctrine,  accepted  and  ap- 
proved by  Great  Britain  as  a  proper  policy  in  its  original 
wording,  is  not  and  never  has  been  international  law.  It  is 
also  neither  municipal  nor  constitutional  law,  but  is  a  declara- 
tion of  the  national  policy  of  the  United  States  which  has  been 
adhered  to  and  followed  in  the  main  with  respect  to  European 
powers.  It  has  varied  greatly  in  its  definition  and  interpreta- 
tion in  the  relations  of  the  United  States  with  the  other  powers 
of  the  continent  who  are  generally  known  as  the  Latin- 
American  states. 

30.  The  Declaration  of  Paris. — The  Crimean  War  between 
Russia  on  one  side  and  France,  England,  Sardinia,  and  Turkey 
upon  the  other  was  unfortunate  in  so  far  as  it  gave  a  new  lease 
of  life  to  Turkey  in  Europe,  but  it  also  gave  a  step  toward  the 
unification  of  Italy.  The  congress  of  Paris,  in  establishing 
peace  at  the  conclusion  of  hostilities,  gave  to  the  world  the 
declaration  of  Paris,  which  in  its  enunciation  of  important 
principles  in  maritime  warfare  settled  disputes  of  many  years* 
standing. 

At  the  outbreak  of  the  Crimean  War,  both  England  and 
France,  on  March  28  and  29,  1854,  declared  upon  the  subject 
of  maritime  capture  that  they  would  "waive  the  right  of 
seizing  enemy's  property  on  board  a  neutral  vessel  unless  it  be 
contraband  of  war;  nor  was  it  their  intention  to  claim  the  con- 
fiscation of  neutral  property  not  being  contraband  of  war  "  in 
enemy's  ships.  Furthermore  they  declared  it  was  not  their 
present  intention  to  commission  privateers.  Otherwise  they 
announced  their  intention  to  seize  contraband,  to  prevent 
neutrals  from  bearing  enemy's  despatches,  and  to  declare  and 
maintain  blockade.    As,  at  this  time,  England  claimed  the 


48  INTRODUCTORY 

right  of  seizing  the  goods  of  an  enemy  in  neutral  merchantmen 
and  France  claimed  the  power  to  seize  neutral  goods  on  enemy's 
vessels,  as  allies  engaged  in  a  common  war  they  would  have 
caused  neutrals  to  suffer  badly  had  it  not  been  for  their  mutual 
agreement  and  declarations.^ 

The  principles  involved  in  these  declarations  naturally  came 
up  as  subjects  for  discussion  in  the  congress  of  Paris  in  1856, 
which  established  peace,  and  the  result  was  the  famous  declara- 
tion of  Paris,  signed  March  30,  1856.  This  declaration  an- 
nounced the  following  principles: 

(1)  Privateering  is  and  remains  abolished. 

(2)  The  neutral  flag  covers  enemy's  goods  with  the  excep- 
tion of  contraband  of  war. 

(3)  Neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  an  enemy's  flag. 

(4)  Blockades,  in  order  to  be  binding,  must  be  effective; 
that  is  to  say,  maintained  by  a  force  sufficient  really  to  prevent 
access  to  the  coast  of  an  enemy.^ 

The  United  States  of  America  is  the  only  maritime  power 
that  has  not  formally  adhered  to  this  declaration  in  its  en- 
tirety. Secretary  Marcy  declined  to  accept  this  declaration 
on  the  part  of  the  United  States  unless  it  was  amended  so  as  to 
include  a  provision  by  which  the  private  property  of  the  cit- 
izens or  subjects  of  a  belligerent  power  shall  be  exempt  from 
seizure  by  public  armed  vessels  of  the  enemy  except  it  be  con- 
traband of  war.  The  United  States  announced,  however,  dur- 
ing the  Civil  War  and  during  the  war  with  Spain,  in  1898,  that 
it  would  adhere  in  its  conduct  to  the  principles  of  the  declara- 
tion. This  declaration  has  been  made  more  effective  by  the 
enumeration  of  contraband  of  war  and  the  common  agree- 
ment as  to  the  conditions  of  blockade  by  the  declaration  of 
London,  to  which  the  United  States  is  a  party.  The  condi- 
tions as  to  the  value  of  privateering  at  the  present  day  and  as 

1  Manning's  "Commentaries,"  new  ed.,  p.  249. 

*  Higgins,  "The  Hague  Peace  Conferences,"  etc.,  pp.  3,  4. 


DEVELOPMENT  OF  MODERN  INTERNATIONAL  LAW    49 

to  our  own  naval  strength  have  changed  very  much  from  the 
past,  and  the  holding  out  against  a  formal  adherence  on  our 
part  is  now  of  little  consequence  in  view  of  our  action  in  our 
last  two  wars.  President  Woolsey,  in  discussing  this  subject, 
wisely  says,  in  conclusion,  that  "  the  true  policy  of  the  United 
States  is  to  come  under  the  operation  of  the  four  articles  as 
soon  as  possible."  ^ 

31.  From  the  Declaration  of  Paris  to  the  Treaty  of  Wash- 
ington, 1871. — The  wars  succeeding  the  Crimean  War  in  Europe 
up  to  and  including  the  Franco-German  War  developed  no 
great  matters  or  changes  in  international  law.  The  Schleswig- 
Holstein  War  with  its  aftermath  of  the  war  between  Austria 
and  the  North  German  Confederation  gave  to  the  coming 
empire  of  Germany  the  important  naval  port  of  Kiel.  The 
unification  of  Italy  and  the  consequent  establishment  of  a  new 
maritime  power  resulted  from  the  latter  and  other  wars  and 
deprived  the  Vatican  of  temporal  power.  The  Franco-German 
War,  depriving  France  of  her  Rhine  provinces,  created  imperial 
Germany,  a  strong  and  aggressive  member  of  the  family  of 
nations,  with  naval  ambitions  and  increasing  sea  power. 

In  America,  however,  from  the  Civil  War  of  1861-5  arose 
several  questions  in  international  law,  especially  with  respect 
to  the  rights  and  duties  of  neutrals  ashore  and  afloat. 

Among  these  questions,  which  will  only  be  mentioned  now 
and  discussed  later,  was  that  of  the  early  recognition  of  the 
status  of  belligerency  of  the  Confederate  States,  the  oflScial 
issue  of  Doctor  Lieber's  codification  of  the  laws  of  land  warfare 
as  instructions  to  the  armies  of  the  United  States  in  the  field, 
the  Deerhound  rescue  of  Captain  Semmes  of  the  Alabama,  the 
questions  of  continuous  voyages  with  respect  to  the  blockade 
and  contraband  of  war,  the  affair  of  the  Trent,  the  seizure  of 
the  Florida  and  the  Cliesapeake  in  neutral  ports,  and  the  serious 
controversies  involved  in  the  construction  and  equipment  of 
the  Alabama  and  other  vessels  of  war  for  the  Confederates, 
»  Woolsey'a  "Int.  Law,"  6th  ed.,  p.  314,  note. 


50  INTRODUCTORY 

which  finally  resulted  in  the  treaty  of  Washington  of  1871,  its 
rules  of  neutrality,  and  the  subsequent  arbitration  and  award  at 
Geneva. 

In  1864  the  first  convention  for  the  amelioration  of  the  con- 
dition of  soldiers  wounded  in  armies  in  the  field  was  formulated 
at  Geneva ;  an  additional  conference  for  the  same  purpose  met 
again  in  Geneva  in  1868,  and  finally,  in  1906,  a  new  convention 
was  framed  in  the  same  place  and  has  been  generally  ratified. 

32.  From  the  Treaty  of  Washington  of  1871  to  the  First 
Hague  Conference. — The  rules  of  the  treaty  of  Washington 
of  1871  which  were  adopted  by  the  signatory  powers,  the 
United  States  and  Great  Britain,  and  upon  which  was  based 
the  Geneva  arbitration,  read  as  follows: 

A  neutral  government  is  bound — 

First.  "  To  use  due  dihgence  to  prevent  the  fitting  out, 
arming,  or  equipping  within  its  jurisdiction  of  any  vessel  which 
it  has  reasonable  ground  to  believe  is  intended  to  cruise  or 
to  carry  on  war  against  a  power  with  which  it  is  at  peace; 
and  also  to  use  like  diligence  to  prevent  the  departure  from  its 
jurisdiction  of  any  vessel  intended  to  cruise  or  carry  on  war  as 
above,  such  vessel  having  been  specially  adapted  in  whole  or 
in  part,  within  such  jurisdiction  to  warlike  use." 

Secondly.  "  Not  to  permit  or  suffer  either  belligerent  to 
make  use  of  its  ports  or  waters  as  the  base  of  naval  opera- 
tions against  the  other  or  for  the  purpose  of  the  renewal  or 
augmentation  of  military  supplies  or  arms  or  the  recruitment 
of  men." 

Thirdly.  "  To  exercise  due  diligence  in  its  own  ports  and 
waters,  and  as  to  all  persons  within  its  jurisdiction,  to  prevent 
any  violation  of  the  foregoing  obligations  and  duties." 

Besides  the  question  known  as  the  Alabama  claims,  which 
was  to  be  decided  by  the  arbitration  tribunal  which  met  at 
Geneva,  there  were  other  unsettled  questions  between  the  two 
countries  which  were  included  in  the  treaty  to  be  settled,  some 
by  a  tribunal  which  met  at  Halifax,  and  another  one,  a  question 


DEVELOPMENT  OF  MODERN  INTERNATIONAL  LAW    51 

of  boundaries  in  the  northwest,  that  was  settled  by  the  arbi- 
tration and  decision  of  the  Emperor  of  Germany. 

The  United  States  made,  before  the  tribunal  of  Geneva, 
claims  for  losses  indirectly  incurred  by  the  depredations  of 
the  Alabama  and  other  Confederate  cruisers,  one  of  which  was 
for  the  expenses  involved  in  the  prolongation  of  the  war.  With- 
out action  upon  the  questions  of  the  so-called  indirect  damages, 
the  tribunal  held  that  "these  claims  do  not  constitute,  upon 
the  principles  of  international  law  applicable  to  such  cases, 
good  foundation  for  an  award  of  compensation  or  computation 
of,  damages  between  nations  and  should,  upon  such  principles, 
be  wholly  excluded  from  the  consideration  of  the  tribunal,  in 
making  its  award,  even  if  there  were  no  disagreement  between 
the  two  governments  as  to  the  competency  of  the  tribunal  to 
decide  thereon." 

On  the  14th  of  September,  1872,  the  award  was  made  by  the 
tribunal  of  Geneva  of  $15,500,000  in  gold  for  the  actual  losses 
of  vessels  and  goods  sustained  from  the  three  Confederate 
vessels. 

The  practical  adoption  of  the  rules  of  this  treaty,  as  given 
above,  at  a  later  date  by  the  second  Hague  conference  will  be 
discussed  under  the  proper  heading. 

Various  international  conferences,  like  that  of  London  in 
1871  on  the  Black  Sea  question,  the  Brussels  conference  of 
1874,  the  West  African  conference  on  the  Congo  question  in 
in  1884-5,  and  the  international  military  commissions  of 
St.  Petersburg,  have  been  convened  and  have  formulated  regu- 
lations, some  of  which  have  been  incorporated  into  later  con- 
ventions of  The  Hague.  Many  other  conferences  have  been 
convened  and  dealt  with  a  great  variety  of  subjects,  adopting 
administrative  regulations  covering  matters  of  safety  in  navi- 
gation, postal  communication,  and,  in  general,  of  a  social,  eco- 
nomic, and  sanitary  nature. 

The  short  Spanish-American  War  and  that  between  China 
and  Japan  involved  minor  disputed  questions  of  international 


52  INTRODUCTORY 

law  which  will  be  dealt  with  later,  under  the  proper  headings- 
But  after  the  Spanish-American  War  of  1898,  on  the  llth  of 
January,  1899,  the  Russian  foreign  minister  took  action  which 
is  destined  to  be  far-reaching  in  its  effect. 

He  proposed  in  the  name  of  the  Czar,  as  supplementary  to 
a  previous  invitation,  the  meeting  of  a  conference  of  all  govern- 
ments accredited  to  the  court  of  St.  Petersburg  for  the  purpose 
of  considering  various  subjects  connected  with  the  limitation 
of  armaments,  the  mitigation  of  the  evils  of  war,  and  the  main- 
tenance of  peace.  The  Dutch  Government  having  assented 
to  the  assemblage  of  the  conference  at  The  Hague,  invitations 
were  addressed  by  it  to  the  states  designated  by  Russia,  and 
the  first  Hague  conference  was  called  into  being. 

33.  The  First  Hague  Conference. — ^The  conference  met 
on  the  2d  of  May,  1899,  under  the  presidency  of  M.  de  Staal, 
the  first  Russian  plenipotentiary,  and  was  attended  by  rep- 
resentatives of  twenty-six  powers.  Difficulties  had  been  raised 
as  to  the  status  of  several  powers  invited.  Italy  declined  to 
attend  if  the  papal  representative  was  admitted;  Great  Britain, 
as  suzerain,  objected  to  the  representative  of  the  Transvaal. 
The  representative  of  Bulgaria  was  admitted  as  in  subordina- 
tion to  Turkey.  The  powers  represented  did  not  include  any 
of  the  American  republics  with  the  exception  of  the  United 
States  and  Mexico,  and  the  results  of  this  conference  fell  far 
short  of  what  was  expected  from  its  initiation  and  from  the 
terms  of  the  circular  of  the  Russian  court.  The  limitation  of 
armaments  and  of  war  budgets  was  recognized  in  a  resolution 
in  which  such  restriction  was  affirmed  as  being  extremely  de- 
sirable. An;yi:hing  beyond  that  was  found  to  present  so  many 
difficulties  from  a  practical  point  of  view  that  it  was  abandoned. 
But  something  was  accomplished:  first  and  best  of  all,  a  con- 
vention arranging  for  the  pacific  settlement  of  international 
disputes  was  adopted;  second,  one  for  regulating  and  further 
humanizing  the  laws  and  customs  of  war  on  land;  and  third,  one 
for  the  adaptation  to  maritime  warfare  of  the  principles  of  the 


DEVELOPMENT  OF  MODERN  INTERNATIONAL  LAW    53 

Geneva  convention  of  1864.  Three  declarations  were  adopted 
prohibiting  the  use  of  various  projectiles  and  explosives  that 
caused  unnecessary  suffering,  and  also  a  number  of  wishes 
(vcBuz)  were  drawn  up  that  were  to  bear  fruit,  it  was  hoped, 
at  some  future  day. 

Soon  after  the  conclusion  of  the  conference  a  war  broke  out 
between  the  South  African  republics  and  Great  Britain,  and 
that  was  succeeded  by  the  war  between  Russia  and  Japan. 
The  improved  code  for  land  warfare  was  put  in  operation,  and 
combatants  were  at  last  working  upon  a  common  basis. 

Under  the  convention  for  the  pacific  settlement  of  interna- 
tional disputes,  the  Dogger  Bank  affair  between  Great  Britain 
and  Russia  was  settled,  the  machinery  for  the  conclusion 
of  the  Russo-Japanese  War  was  put  into  operation,  and  a 
court  of  arbitration  established  which  tried  several  important 
cases. 

34.  The  Second  Hague  Conference. — This  conference 
was  proposed  by  President  Roosevelt  through  the  secretary  of 
state,  ]\Ir.  John  Hay,  in  1904,  Russia  being  at  that  time  at 
war  with  Japan.  The  Czar,  however,  made  known  his  wish 
to  call  the  second  conference  at  The  Hague,  and  President 
Roosevelt  at  once  yielded  the  precedence  to  the  Czar,  who 
issued  the  first  call  in  1906,  and  this  time  included  all  other 
countries  in  South  America  that  were  ready  to  adhere  to  the 
conventions  of  the  previous  Hague  conference.  After  unavoid- 
able delay  the  second  convention  of  The  Hague  met  on  the 
15th  of  June,  1907,  with  representatives  from  forty-five  states. 
As  a  result  there  were  thirteen  conventions  and  one  decla- 
ration adopted,  and  three  wishes  (voeux),  and  a  number  of 
recommendations  entered  upon  the  records.  The  conventions 
were : 

1.  A  revised  convention  for  the  pacific  settlement  of  inter- 
national disputes. 

2.  A  convention  respecting  the  employment  of  force  for  the 
recovery  of  contract  debts, 


64  INTRODUCTORY 

3.  A  convention  relative  to  the  opening  of  hostilities. 

4.  A  revised  convention  regarding  the  laws  and  customs  of 
land  warfare. 

5.  A  convention  relating  to  the  rights  and  duties  of  neutral 
powers  and  persons  in  case  of  war  on  land. 

6.  A  convention  regarding  the  status  of  enemy  merchant 
ships  at  the  outbreak  of  hostilities. 

7.  A  convention  in  regard  to  the  conversion  of  merchant 
ships  into  war-ships. 

8.  A  convention  as  to  the  laying  of  submarine  mines. 

9.  A  convention  regarding  the  bombardments  by  naval 
forces  in  time  of  war. 

10.  A  convention  for  the  adaptation  to  maritime  war  of  the 
principles  of  the  Geneva  convention. 

11.  A  convention  relative  to  certain  restrictions  with  regard 
to  the  exercise  of  the  right  of  capture  in  naval  war. 

12.  A  convention  relative  to  the  creation  of  an  international 
prize-court. 

13.  A  convention  concerning  the  rights  and  duties  of  neutral 
powers  in  naval  war. 

Besides  these  conventions  there  was  a  renewal  of  the  decla- 
ration prohibiting  the  discharge  of  projectiles  and  explosives 
from  balloons.  In  addition,  the  principle  of  compulsory  arbi- 
tration was  admitted,  and  the  resolution  of  the  first  Hague 
conference  in  regard  to  the  limitation  of  military  expen- 
ditures was  confirmed.  The  wishes  adopted  were  in  favor 
of  the  advisability  of  formulating  a  convention  for  a  judicial 
arbitral  court,  and  also  one  to  safeguard  the  pacific  rela- 
tions, more  especially  those  of  a  commercial  and  industrial 
nature  between  inhabitants  of  the  belligerent  states  and  neu- 
tral countries.  The  conference  also  expressed  the  wish  that 
the  powers  should  regulate  by  special  treaties  the  position, 
as  regards  military  charges,  of  foreigners  within  their  terri- 
tories, also  that  the  preparation  and  codifications  of  regulations 
relative  to  the  laws  and  customs  of  naval  warfare,  or  in  any  case 


DEVELOPMENT  OF  MODERN  INTERNATIONAL  LAW    55 

applying  as  far  as  possible  the  principles  of  the  laws  and  cus- 
toms of  war  on  land  to  such  warfare,  should  be  taken  up  by 
the  next  Hague  conference,  and  also  that  the  meeting  of  this 
conference  should  take  place  at  a  date  fixed  by  common  agree- 
ment. 

So  far  as  the  revision  of  the  convention  for  the  pacific  settle- 
ment of  international  disputes  is  concerned  in  the  first  eight 
articles,  the  only  changes  were  to  substitute  the  word  "  con- 
tracting" for  "  signatory"  powers,  and  in  Article  3  to  add  the 
words  "and  desirable"  so  that  it  now  reads:  "Independently 
of  this  recourse  (to  war)  the  contracting  powers  deem  it  ex- 
pedient and  desirable  that  one  or  more  powers  strangers  to  the 
dispute  should  on  their  own  initiative,  and  as  far  as  circum- 
stances may  allow,  offer  their  good  offices  or  mediation  to  the 
states  at  variance,"  etc. 

The  subject  of  international  commissions  of  inquiry  was 
dealt  with  in  six  articles  in  the  convention  of  1899,  but  that  of 
1907  contains  twenty-eight  articles  upon  the  subject.  This 
institution  had  proved  its  value  in  the  North  Sea  commission 
of  1905.  The  only  other  important  change  was  made  in  the 
addition  to  present  Article  48 — formerly  Article  27 — which 
provides  that  in  case  of  dispute  between  two  powers  one  of 
them  may  always  address  to  the  international  bureau  a  note 
containing  a  declaration  that  it  would  be  ready  to  submit 
the  disputes  to  arbitration. 

"  The  bureau  must  at  once  inform  the  other  power  of  the 
declaration." 

This  convention  was  adopted  by  the  United  States  and  con- 
firmed by  the  Senate  on  April  2,  1908,  with  the  following 
declaration:  "Nothing  contained  in  this  convention  shall  be 
so  construed  as  to  require  the  United  States  of  America  to 
depart  from  its  traditional  policy  of  not  intruding  upon,  inter- 
fering with,  or  entangling  itself  in  the  political  questions  of 
policy  or  internal  administration  of  any  foreign  state,  nor  shall 
anything  contained  in  the  said  convention  be  construed  to 


56  INTRODUCTORY 

imply  a  relinquishment  by  the  United  States  of  its  traditional 
attitude  toward  purely  American  questions. 

"Resolved,  further,  as  a  part  of  this  act  of  ratification,  that 
the  United  States  approves  this  convention  with  the  under- 
standing that  recourse  to  the  permanent  court  for  the  settle- 
ment of  differences  can  be  had  only  by  agreement  thereto 
through  general  or  special  treaties  of  arbitration  heretofore  or 
hereafter  concluded  between  the  parties  in  dispute;  and  the 
United  States  now  exercises  the  option  contained  in  Article  53 
of  said  convention  to  exclude  the  formulation  of  the  'compro- 
mis'  by  the  permanent  court  and  hereby  excludes  from  the 
competence  of  the  permanent  court  the  power  to  frame  the 
'compromis'  required  by  general  or  special  treaties  of  arbi- 
tration concluded  or  hereafter  to  be  concluded  by  the  United 
States  and  further  expressly  declares  that  the  'compromis' 
required  by  any  treaty  of  arbitration  to  which  the  United 
States  may  be  a  party  shall  be  settled  only  by  agreement 
between  the  contracting  parties,  unless  such  treaty  shall  ex- 
pressly provide  otherwise."  ^ 

The  second  Hague  conference  adjourned  on  the  18th  of 
October,  1907,  after  a  session  of  some  months.  Its  results, 
where  not  discussed  under  the  present  heading,  will  be  dis- 
cussed later,  when  the  subjects  treated  by  the  conference  come 
up  for  separate  treatment. 

Of  the  conference  as  a  whole  there  must  be  expressed  the 
general  feeling  of  disappointment  accompanying  the  close  of 
all  conferences  assembled  under  the  name  of  peace  conferences. 

Higgins,  in  his  comment  on  this  conference,  says: 

"Some  of  these  causes  of  want  of  greater  success  are  capable 
of  remedy  by  a  future  conference,  but  the  more  fundamental 
and  permanent  cause  was  political.  Each  delegation  had  the 
primary  duty  to  discharge  of  defending  its  state's  national 
interests;  the  conference  was  not  composed  merely  of  lawyers 
intent  on  framing  a  scientific  code  of   international   law;    it 

1  See  Scott's  "Hague,"  etc. 


DE\^LOPMENT  OF  MODERN  INTERNATIONAL  LAW    57 

was  a  battle-field  of  diplomatists.     In  questions  where  political 
considerations  were  supreme  compromise  was  often  impossible. 


"Notwithstanding  all  these  circumstances,  the  conference 
was  not  a  failure;  it  was  disappointing,  but  it  is  not  discour- 
aging. War  will  not  be  banished  from  the  world  by  peace 
conferences;  nevertheless  such  gatherings,  by  removing  doubts 
in  international  rules  and  bringing  into  greater  prominence 
the  solidarity  of  the  interests  of  mankind,  may  do  much  to 
encourage  arbitration  and  to  remove  the  causes  of  war."  ^ 

35.  The  Declaration  of  London. — The  international  prize- 
court  formulated  at  the  second  Hague  convention,  and  which 
has  been  duly  ratified  by  the  United  States,  contains  in  the 
second  part  of  Article  7  the  following  words : 

"In  the  absence  of  such  (treaty)  provisions,  the  court  shall 
apply  the  rules  of  international  law.  If  no  generally  recognized 
rule  exists,  the  court  shall  give  judgment  in  accordance  with 
the  general  principles  of  justice  and  equity." 

As  a  strong  feeling  existed  on  the  part  of  Great  Britain  and 
other  maritime  powers  as  to  what  rules  of  maritime  interna- 
tional law  might  be  considered  to  exist  at  the  present  day,  it 
was  considered  wise  by  Great  Britain  to  call  a  conference  to 
determine  what  laws  should  govern  the  international  prize- 
court  in  the  cases  to  be  brought  before  it  for  trial.  Accordingly, 
on  the  invitation  of  the  British  Government,  delegates  from 
Germany,  the  United  States,  France,  Great  Britain,  Italy, 
Austria,  Russia,  Japan,  Holland,  and  Spain  met  in  London 
from  December,  1908,  to  February,  1909,  and  formulated  a 
convention  popularly  known  as  the  declaration  of  London, 
settling  many  important  matters  in  the  relations  of  belligerents 
and  neutrals  in  matters  connected  with  prize  laws  that  were 
liable  to  be  within  the  jurisdiction  of  an  international  prize- 
court  and  about  which  there  had  existed  great  differences. 
*  Higgins,  "Hague  Conferences,"  pp.  525,  526. 


58  INTRODUCTORY 

This  declaration  is  known  oflBcially  as  the  "declaration 
concerning  the  laws  of  naval  war,"  while  the  conference  is 
known  as  the  London  naval  conference  of  1909.  The  prelim- 
inary provision  of  the  declaration  states  that  the  signatory 
powers  are  agreed  that  the  rules  contained  in  the  chapters  that 
followed  correspond  in  substance  with  the  generally  recognized 
principles  of  international  law.  The  subjects  treated  were 
those  of  blockade  in  time  of  war,  contraband  of  war,  unneutral 
service,  destruction  of  neutral  prizes,  transfer  to  a  neutral  flag, 
enemy  character,  convoy,  resistance  to  search  and  compen- 
sation, finishing  with  a  wish  (vceu)  with  regard  to  the  inter- 
national prize-court,  which  was  adopted  at  the  request  of  the 
United  States  in  order  to  avoid  what  seemed  to  be  a  constitu- 
tional difficulty  with  respect  to  appeals  to  the  prize-court  from 
our  Supreme  Court.  According  to  this  wish,  the  delegates 
were  to  point  out  to  their  governments  the  advantage  there 
will  be  in  arriving  at  an  agreement  of  a  kind  to  dispel  the  dif- 
ficulties of  a  constitutional  nature  which  face  some  of  them. 
It  is  a  proposition  for  attaining  the  same  end  under  another 
form ;  instead  of  annulling  a  decision  appealed  from,  the  prize- 
court  will  award  compensation.  The  result,  however,  remains 
the  same;  the  individual  affected  will  be  able  to  obtain  a  new 
trial  which  will  in  the  end  do  him  justice.  The  method  alone 
is  different. 

The  declaration  of  London  has  been  approved  by  the  Presi- 
dent of  the  United  States  and  was  ratified  by  the  Senate  April 
24,  1912.  Whether  formally  ratified  or  not  by  the  signatory 
and  other  powers,  it  has  the  authoritative  weight  due  to  the 
unanimous  vote  of  the  representatives  of  the  great  maritime 
powers  and  to  their  declaration  that  it  represents  the  actual 
principles  of  international  law  upon  the  subjects  dealt  with. 
It  is  highly  satisfactory  to  know  that  so  many  questions  of  the 
conflicting  schools  of  continental  Europe  and  of  England  and 
America  have  been  finally  and  formally  agreed  upon.  The 
criticisms  in  regard  to  the  conference  and  the  declaration  of 


DEVELOPMENT  OF  MODERN  INTERNATIONAL  LAW    59 

London  have  been  more  as  to  its  omissions  rather  than  as  to 
its  agreements  and  results. 

36.  Events  since  1909  Bearing  upon  International  Law. — 
Events  occurring  since  the  London  naval  conference  that  have 
a  direct  and  indirect  bearing  upon  international  law  may 
be  mentioned  in  closing  this  chapter  upon  the  development 
of  modern  international  law.  They  will  be  referred  to  more 
fully  later  under  their  various  headings.  The  first,  chronolog- 
ically speaking,  was  the  arbitration  at  The  Hague  between  the 
United  States  and  Great  Britain  as  to  the  disputes  arising  from 
the  interpretation  of  the  treaty  of  1818  on  the  subject  of  fishery 
rights  on  the  coasts  of  Newfoundland,  Labrador,  etc.  (this 
took  place  in  1910  and  involved  a  definition  of  territorial 
waters);  the  questions  of  intervention  and  mediation  in  cer- 
tain Latin- American  states;  matters  involved  in  the  formation 
of  the  state  of  Panama  and  the  use  of  the  Panama  Canal;  the 
fate  of  the  arbitration  treaties  of  the  United  States;  the  prog- 
ress of  the  codification  of  maritime  international  law,  includ- 
ing the  action  of  the  Institute  of  International  Law  at  Oxford 
in  1913;  the  Turkish-Italian  and  Balkan  Wars  of  1913  and  the 
questions  incident  thereto,  and  especially  the  deliberations  and 
actions  of  the  great  European  powers.  To  this  may  be  added 
the  many  questions  involved  in  the  great  European  war  in 
progress  in  1914. 

TOPICS  AND  REFERENCES 

1.  The  Thirty  Years'  War  and  the  Peace  of  Westphalia — 

Walker,  "Science  of  International  Law,"  72,  89,  etc.,  247. 
Wheaton's  "History  of  the  Law  of  Nations,"  69.  Bernard, 
"Lectures  on  Diplomacy,"  II,  chap.  VII. 

2.  The  Successors  of  Grotius — 

A.  D.  White,  "Seven  Great  Statesmen,"  113,  161.  Wheaton,  "His- 
tory of  Law  of  Nations,"  193,  200,  219-229,  309-322.  Hershey, 
"Essentials,"  59-63. 

3.  From  the  Peace  of  Westphalia  until  the  Peace  of  Utrecht — 

Wheaton,  "History  of  Law  of  Nations,"  78,  etc.  Walker,  "Science 
of  International  Law,"  74.     Oppenheim,  2d  ed.,  61,  62,  63. 


60  INTRODUCTORY 

4.  From  the  Peace  of  Utrecht  to  the  Outbreak  of  the  French  Revolution — 

Wheaton,  "History  of  the  Law  of  Nations,"  87,  106,  210. 
Hosack,  "Rise  and  Growth  of  Law  of  Nations"  (1882),  chaps. 
VIII-X.  Oppenheim,  2d  ed.,  64-65.  Halleck,  Baker's  4th  ed., 
21,  22. 

5.  From  the  French  Revolution  to  the  Congress  of  Vienna — 

Henry  Adams,  "History  of  the  United  States,"  vol.  IV,  chap.  IV. 
Wheaton,  "History  of  Law  of  Nations,"  372.  Mahan's  "Influ- 
ence of  Sea  Power  upon  French  Revolution,"  vol.  II,  chap.  XVIL 
Manning,  "Law  of  Nations,"  bk.  V,  chap.  X. 

6.  From  the  Congress  of  Vienna  to  the  Declaration  of  Paris — 

Fyffe,  "History  of  Modern  Europe,"  chap.  I.  Phillips,  "Modern 
Europe,"  4th  ed.     Hazen,  "Europe  since  1815." 

7.  Monroe  Doctrine — 

Coolidge,  "The  U.  S.  as  a  World  Power,"  chap.  V.  Moore's 
"Digest,"  chap.  XX.  Chadwick,  "The  Diplomatic  Relations  of 
the  United  States  with  Spain,"  chap.  X. 

8.  The  Declaration  of  Paris — 

Higgins,  "The  Hague  Peace  Conferences,  1909,"  1-4.  Woolsey, 
314.     Oppenheim,  119. 

9.  Questions  of  International  Law  Arising  During  Our  Civil  W^ar— * 

The  Deerhound  affair.  The  blockade.  Continuous  voyage.  The 
Alabama  claims.  The  treaty  of  Washington  of  1871.  "Letters 
of  Historicus— Blockade,"  89-118.  Woolsey,  §§  202-6.  West- 
lake,  chap.  IX.  Moore's  "Digest,"  vol.  II,  979;  vol.  V, 
723;  vol.  VI,  999;  vol.  VII,  697,  also  Moore's  "Arbitrations," 
vol.  I,  chaps.  XIV,  XV,  and  XVI.  Walker,  "Science  of  Inter- 
national Law,"  458,  502.  Bernard  (English),  "Neutrality  of 
Great  Britain  During  American  Civil  War."  Gushing,  "Treaty 
of  Washington." 

10.  The  Hague  Conferences — 

"Naval  War  College,  1908,"  117,  etc.  Scott's  "Hague  Confer- 
ences."    Higgins,  "Hague  Conferences." 

11.  Declaration  of  London — 

Bentwich,  "The  Declaration  of  London."  Higgins,  "Hague  Con- 
ferences." "Naval  War  College,  1910."  See  appendix  of  this 
book,  no.  IV. 


PART  II 
STATES  IN  INTERNATIONAL  LAW 

CHAPTER  IV 

STATES:    THE    PRIMARY    SUBJECTS    OF    INTERNATIONAL 
LAW;    THEIR  CHARACTERISTICS  AND  CLASSIFICATION 

37.  Sovereign  States  the  Subjects  of  International  Law. — 

Sovereign  states,  or  states  fully  independent  and  members 
of  the  family  of  nations,  are  primarily  the  subjects  of  inter- 
national law.  In  the  sense  used  here  and  ordinarily  in  this 
treatise,  the  term  a  sovereign  state  is  synonymous  with  that  of 
a  nation.  Nations  that  are  less  than  civilized,  part-sovereign 
states,  communities,  corporations,  and  individuals,  though  not 
regarded  as  principal  persons  or  subjects,  are,  however,  af- 
fected by  the  rules  of  international  law  and,  according  to  cir- 
cumstances, more  or  less  governed  by  them. 

38.  Definition  of  a  Sovereign  State. — A  sovereign  state  may 
be  defined  in  general  terms  to  be  a  fully  independent  and  civ- 
ilized community  of  persons,  permanently  located  within  a 
fixed  country,  organized  under  common  laws  into  a  body  politic 
for  mutual  advantage,  exercising  the  rights  of  government 
over  all  persons  and  things  within  its  territory,  and  capable  of 
entering  into  relations  and  intercourse  with  the  other  states  of 
the  world.^ 

39.  Characteristics  and  Conditions  of  Sovereign  States. — 

A  sovereign  state,  to  be  in  full  standing  as  such,  must  have  the 

following  characteristics  and  conditions: 

»  Moore's  "Digest,"  vol.  I,  p.  12. 
61 


62  STATES  IN  INTERNATIONAL  LAW 

First.  There  must  be  a  normal  political  community  of  per- 
sons with  common  laws,  customs,  and  habits. 

Second.  There  must  be  a  fixed  territory  within  which  thesft 
persons  permanently  live. 

Third.  There  must  be  a  supreme  government  normally 
controlling  all  persons  and  things  within  its  boundaries  and 
capable  of  entering  into  and  maintaining  full  relations  with 
other  states,  with  the  power  of  making  offensive  and  defensive 
war  and  also  peace.  ^ 

Fourth.  The  state  must  be  fully  independent  of  all  other 
states  but  governing  its  intercourse  with  them  according  to 
the  tenets  of  international  law. 

Fifth.  The  state  must  be  recognized  as  a  sovereign  state 
and  an  equal  in  law  by  the  other  sovereign  states  of  the 
world. 

Sixth.  It  must  possess  a  certain  elevated  standard  of  civ- 
ilization. 

As  to  other  matters,  PhiUimore  says:  "  It  is  a  sound  general 
principle,  and  one  to  be  laid  down  at  the  threshold  of  the 
science  of  which  we  are  treating,  that  international  law  has 
no  concern  with  the  form,  character,  or  power  of  the  constitu- 
tion or  government  of  a  state;  with  the  religion  of  its  inhab- 
itants; the  extent  of  its  domain;  or  the  importance  of  its  posi- 
tion, and  influence  in  the  commonwealth  of  nations.  .  .  . 
Provided  that  the  state  possess  a  government  capable  of  secur- 
ing at  home  the  observance  of  rightful  relations  with  other 
states,  the  demands  of  international  law  are  satisfied."  ^ 

It  may  be  mentioned  here  that  the  territory  of  a  sovereign 
state  includes  its  colonies,  dependencies,  and  insular  posses- 
sions, no  matter  how  governed. 

40.    Equality  of  Sovereign  States  in  a  Legal  Sense.— Legally 

all  sovereign  states  within  the  purview  of  international  law 

are  equal,  that  is,  equal  in  their  rights  and  in  their  obligations, 

equal  in  their  sovereignty  and  in  their  independence.     It  does 

1  Phillimore,  "Int.  Law,"  3d  ed.,  vol.  I,  p.  81. 


PRIMARY  SUBJECTS  OF  INTERNATIONAL  LAW        63 

not  follow,  of  course  that  this  equality  extends  to  their  in- 
fluence. 

"  Nations,"  says  Vattel,  "  composed  of  men  and  considered 
as  so  many  free  persons  living  together  in  the  state  of  nature 
are  naturally  equal  and  inherit  from  nature  the  same  obliga- 
tions and  rights.  Power  or  weakness  does  not  in  this  respect 
produce  any  difference.  A  dwarf  is  as  much  a  man  as  a  giant; 
a  small  republic  is  no  less  a  sovereign  state  than  the  most  power- 
ful kingdom."  ^ 

41.  States,  Communities,  Corporations,  and  Institutions 
That  Are  Not  Primarily  Subjects  of  International  Law.— Among 
communities  and  institutions  which  are  not  directly  subjects 
of  international  law  are  the  members  of  a  federated  union  like 
the  States  and  Territories  forming  the  United  States  of  Amer- 
ica. Of  this  Union  the  Supreme  Court  of  the  United  States, 
in  a  recent  decision,  speaks  as  follows: 

"  While  under  our  Constitution  and  form  of  government  the 
mass  of  local  matters  is  controlled  by  local  authorities,  the 
United  States  in  their  relations  to  foreign  countries  and  their 
subjects  or  citizens  are  one  nation,  invested  with  powers  which 
belong  to  independent  nations,  the  exercise  of  which  can  be 
invoked  for  the  maintenance  of  its  absolute  independence  and 
security  throughout  its  entire  territory.  The  powers  to  declare 
war,  make  treaties,  suppress  insurrection,  repel  invasion, 
regulate  foreign  commerce,  secure  republican  governments  to 
the  States,  and  admit  subjects  of  other  nations  to  citizenship 
are  all  sovereign  powers,  restricted  in  their  exercise  only  by  the 
Constitution  itself  and  considerations  of  public  policy  and 
justice  which  control,  more  or  less,  the  conduct  of  nations."  ^ 

The  states  that  are  members  of  the  German  Empire  and  the 
cantons  composing  the  federation  of  Switzerland  are  not  of 
the  same  status  as  the  States  composing  the  United  States  of 
America,  as  they  possess  certain  international  qualifications, 

•  Vattel,  "Preliminary,"  pars.  18,  21. 

»The  Chinese  Exclusion  Act,  1889,  130  U.  S.  581,  604. 


64  STATES  IN  INTERNATIONAL  LAW 

such  as  a  limited  right  of  legation  and  right  to  grant  exequatur 
to  consuls  and  to  conclude  certain  treaties.  They  lack,  how- 
ever, the  full  rights  and  qualifications  of  sovereign  states  and 
hence  are  not  subjects  of  international  law. 

The  public  corporations  and  companies  chartered  by  the 
state  also  come  under  this  exclusion.  They  were  represented 
in  the  past  by  the  famous  East  India  Companies  and  in  the 
present  time  by  such  corporations  as  the  German  East  Africa 
Company,  the  Royal  Borneo  Company,  and  the  British  South 
Africa  Company.  These  corporations,  though  exercising  al- 
most sovereign  powers  with  respect  to  the  native  chiefs  and 
peoples,  do  so  by  delegation  from  the  supreme  government  of 
their  sovereign  states  to  which  they  are  subordinate.  Their 
charters  can  be  revoked  at  any  time  for  cause,  and  they  can  be 
totally  abolished  by  act  of  the  home  government.  Neverthe- 
less, as  Lawrence  says  of  a  corporation  of  this  type:  "Like 
Janus  of  old,  it  has  two  faces:  on  that  which  looks  toward  the 
native  tribes  all  the  lineaments  and  attributes  of  sovereignty 
are  majestically  outlined.  On  that  which  is  turned  toward  the 
United  Kingdom  are  written  subordination  and  submission."  ^ 

The  papacy,  or  the  Vatican,  at  Rome  is  also  without  a  mem- 
bership in  the  family  of  sovereign  states  since  it  lost  its  temporal 
power  in  1870.  The  Pope  has  no  international  rights;  his 
status  is  regulated  by  the  law  of  guarantees  of  1871  enacted  by 
the  Italian  parliament.  This  Italian  law  guarantees  the 
inviolability  of  the  Pope  and  secures  to  him  the  enjoyment  of 
certain  rights  and  privileges  ordinarily  enjoyed  by  sovereigns. 
He  still  continues  to  an  extent  to  send  and  receive  envoys  and 
to  make  with  certain  Roman  Catholic  countries  ecclesiastical 
treaties  known  as  concordats.  As  an  evidence  of  his  exclusion 
from  international  affairs  it  may  be  recalled  that  the  Vatican 
was  not  invited  nor  its  representative  admitted  to  either  of 
The  Hague  conferences  of  1899  or  1907.^ 

*  Lawrence's  "Principles  of  Int.  Law,"  4th  ed.,  p.  75. 

'  See  text  of  law  in  Halleck  (Baker's  4th  ed.),  vol.  I,  p.  153. 


PRIMARY  SUBJECTS  OF  INTERNATIONAL  LAW        65 

42.  Neutralized  States. — There  is  a  group  of  states  the 
limitation  to  whose  sovereignty,  though  definite  and  perma- 
nent, is  so  slight  that  they  can  be  considered  as  sovereign  states 
though  thev  are  ordinarilv  called  in  a  technical  sense  neutral- 
ized  states.  They  are  not  in  the  fullest  sense  independent  and 
yet  it  would  be  too  drastic  to  call  them  part  or  semi  sovereign 
states.  These  states  are  permanently  neutralized  by  a  treaty 
on  the  part  of  the  great  powers  of  Europe  or  such  of  them  as 
are  definitely  interested  in  the  matter.  They  are  required 
by  convention  to  abstain  from  war,  except  when  they  are 
attacked  or  their  existence  or  territory  threatened.  Their 
immunity  from  attack  is  guaranteed  by  states  who  are  generally 
neighbors  and  who  are  closely  interested.  Switzerland,  Bel- 
gium, and  the  grand  duchy  of  Luxemburg  occupy  this  position 
of  guaranteed  and  permanent  neutrality  provided  they  avoid 
all  belligerent  operations  save  such  as  are  necessary  to  protect 
themselves  from  attack.  This  neutralization  is  the  only  safe- 
guard to  the  small  countries  concerned  as  to  their  nationality 
and  independence,  which  is  treasured  by  them,  especially  by 
the  Swiss  and  Belgians.  The  neutrality  of  Belgium  was  care- 
fully observed  by  the  Germans  in  the  war  of  1870,  when  the 
policy  of  that  country  was  guided  by  Bismarck. 

It  may  be  mentioned  here  incidentally  that  insurgent  com- 
munities that  have  become  recognized  belligerents  attain  a 
certain  status  which  gives  them  a  place  in  international  law 
not  as  sovereign  states  but  as  entitled  to  be  considered  as 
having  rights  and  obligations  in  connection  with  neutrals 
especially  and  for  purposes  of  warfare  under  the  rules  of  which 
they  are  obliged  to  conform. 

Afghanistan  and  Abyssinia,  being  less  than  civilized  as  na- 
tionalities, are  not  entered  into  the  community  of  sovereign 
states,  while  such  weak  communities  as  Liberia,  Andorra, 
Monaco,  and  San  Marino  are  neither  strong  enough  nor  suf- 
ficiently free  from  protecting  entanglements  to  preserve  an 
independence  to  the  extent  required  by  sovereign  states. 


66  STATES  IN  INTERNATIONAL  LAW 

So  far  as  those  communities,  tribes,  and  peoples  who  are 
less  than  civilized,  or  who  are  classed  as  barbarous  and  savage, 
are  concerned,  the  quality  of  their  government  as  well  as  the 
conduct  and  lack  of  intelligence  of  their  peoples  places  them 
out  of  the  sphere  of  subjects,  primary  subjects,  of  international 
law  and,  consequently,  of  members  of  the  family  of  nations. 
They  are  entitled  to  be  treated  with  humanity  and  justice  in 
all  relations  held  with  them.  The  rules  and  moral  sense  of 
international  law  should  be  applied  to  them  as  far  as  prac- 
ticable. The  accountability  with  which  such  peoples  should 
be  held  depends  upon  their  intelligence  and  the  nature  and 
circumstances  attending  upon  their  conduct.  Certainly  the 
law  of  retaliation  should  not  be  indiscriminately  applied  to 
them. 

The  permanent  neutrality  of  Switzerland  was  guaranteed 
under  the  settlement  treaties  of  1815.^  Belgium  was  declared 
permanently  neutralized  by  the  treaty  of  London  confirmed  by 
the  quintuple  treaty ,2  and  Luxemburg  was  similarly  dealt 
with  in  1867.^  "One  or  two  unfortunate  episodes,"  says 
Walker,  "  have  from  time  to  time  suggested  the  necessary 
weakness  of  all  such  human  arrangements.  Chablais,  Faucigny, 
and  the  Genevese  districts  of  Savoy,  neutralized  in  1815,  were, 
in  spite  of  the  protests  of  the  Swiss  Government,  ceded  to 
Napoleon  III  in  1860;^  and  on  December  3,  1870,  a  Prussian 
circular  announced  that,  in  view  of  the  violation  of  the  neu- 
trality of  the  Grand  Duchy  by  the  transit  of  French  soldiers, 
the  Prussians  held  themselves  no  longer  bound  to  respect  the 
neutral  sanctity  of  Luxemburg."^  But  with  these  exceptions 
the  neutralization  of  these  countries  has  been  maintained  either 
by  agreements  of  co-operation  on  the  part  of  states  up  to  the 
present  war  (1914)  or,  as  in  the  case  of  Switzerland  in  1870, 

»  Wheaton,  "Int.  Law,"  pp.  416-420. 

^Hertslet,  "Map  of  Europe  by  Treaty,"  II,  pp.  979-998. 

»  Hertslet,  "Map  of  Europe  by  Treaty,"  III,  p.  1801. 

♦Hertslet,  "Map  of  Europe  by  Treaty,"  II,  pp.  1415,  etc.,  to  1450. 

»  Walker,  "Science  of  Int.  Law,"  p.  449, 


PRBL\RY  SUBJECTS  OF  INTERNATIONAL  LAW       67 

by  a  determined  policy  and  the  exhibition  of  miUtary  strength 
and  efficiency.  Norway  has  been  classed  with  the  neutraHzed 
states;  but  as  the  treaty  of  1907,  made  by  the  leading  European 
powers,  respects  its  integrity  and  agrees  to  support  its  govern- 
ment in  case  this  integrity  should  be  "threatened  or  impaired 
by  any  power  whatsoever,"  Norway  seems  to  be  in  the  status 
more  of  a  protected  than  a  neutralized  state. 

43.  Part-Sovereign  States  and  Protectorates. — In  defining 
in  a  previous  paragraph  a  sovereign  state  it  was  stated  that  it 
should  be  fully  independent  of  all  other  states.  In  other  words, 
as  Moore  says,  "  a  state  is  sovereign  from  the  point  of  view  of 
the  law  of  nations  when  it  is  independent  of  every  other  state  in 
the  exercise  of  its  international  rights  externally  and  in  the 
manner  in  which  it  lives  and  governs  itself  internally."^ 

A  state  which,  while  retaining  a  certain  unity  or  individuality 
in  international  law  is  at  the  same  time  subject  to  the  authority 
or  direction  of  another  state,  or  group  of  states,  especially  in 
its  foreign  intercourse,  is  generally  known  as  a  part-sovereign 
or  semisovereign  state.  The  paramount  state  is  sometimes 
called  the  suzerain,  and  its  relation  to  the  other  states,  suze- 
rainty; but  the  extent  of  the  authority  and  of  the  subordina- 
tion varies  so  greatly  that  it  is  difficult  to  comprehend  the 
dependency  or  the  limitation  in  a  single  phrase  or  by  general 
rules.  Probably  the  term  "part  sovereign,"  or  "with  limited 
sovereignty, "  is  the  best  expression  that  can  be  found  for  use 
in  a  general  sense.     The  conditions  differ  in  almost  every  case. 

In  fact,  there  has  been  attempt  to  separate  what  is  known  as 
a  protected  state  from  the  class  of  semisovereign  states.  "  In 
a  sense,"  as  Moore  says,  "  every  semisovereign  state  may  be 
regarded  as  a  protected  state,  and  protected  states  are  regularly 
classed  as  semisovereign." 

Semisovereign  states  existed  in  the  loose  German  and  Am- 
erican confederations  of  the  past.  Part-sovereign  states  are 
found  in  states  occupying  the  positions  of  Egypt,  Zanzibar, 
»  Moore's  "  Digest,"  vol.  I,  p.  18. 


68  STATES  IN  INTERNATIONAL  LAW 

and  Borneo  under  England,  Tunis  and  Morocco  under  France, 
and  Cuba  and  Panama  under  the  United  States.  Referring 
to  protectorates,  so  called,  in  uncivilized  regions,  I  quote  the 
following  from  Westlake: 

"In  recent  times,"  he  says,  "a  practice  has  arisen  by  which 
in  such  regions  civilized  powers  assume  and  exercise  certain 
rights  in  more  or  less  well-defined  districts,  to  which  rights  and 
districts,  for  the  term  is  used  to  express  both  the  one  and  the 
other,  the  name  of  protectorate  is  given  by  analogy.  The  dis- 
tinctive character  of  those  rights  are:  first,  that  they  are  con- 
trasted with  territorial  sovereignty,  for  as  such  sovereignty  ex- 
tends there  is  the  state  itself  which  has  acquired  it,  and  not  a 
protectorate  exercised  by  that  state;  secondly,  that  the  pro- 
tectorate first  established  excludes  all  other  states  from  exer- 
cising any  authority  within  the  district,  either  by  way  of  terri- 
torial sovereignty  or  protectorate — that  is  to  say  while  it  lasts, 
for  the  question  remains  whether  a  protectorate,  like  an  in- 
choate title  to  territorial  sovereignty,  is  not  subject  to  condi- 
tions and  liable  to  forfeiture  on  their  non-fulfilment;  thirdly, 
that  the  state  enjoying  the  protectorate  represents  and  protects 
the  district  and  its  population,  native  and  civilized,  in  every- 
thing which  relates  to  other  powers.  The  analogy  to  the  pro- 
tectorate exercised  over  states  is  plainly  seen  in  the  last  two 
characteristics — exclusiveness  and  representation  with  protec- 
tion. It  is  less  visible  in  the  first  character,  for,  where  there  is 
a  protected  state,  the  territorial  sovereignty  is  divided  between 
it  and  the  protecting  state,  according  to  the  arrangements  ex- 
isting in  the  particular  case,  while  in  an  uncivilized  state  it  is 
in  suspense."^ 

44.  The  North  American  Indians  and  the  Native  Princes 
of  British  India. — The  relation  existing  prior  to  1871  between 
the  United  States  and  the  North  American  Indians  was,  per- 
haps, unlike  that  of  any  other  peoples.  Of  this  condition,  Chief 
Justice  Marshall  said:  "Though  the  Indians  are  acknowledged 
1  Westlake,  "Int.  Law,"  p.  178. 


PRIMARY  SUBJECTS  OF  INTERNATIONAL  LAW        69 

to  have  an  unquestionable  and  heretofore  unquestioned  right 
to  the  land  they  occupy  until  that  right  shall  be  extinguished 
by  a  voluntary  cession  to  our  government,  yet  it  may  well  be 
doubted  whether  these  tribes  which  reside  within  the  acknowl- 
edged boundaries  of  the  United  States  can,  w^th  strict  accuracy, 
be  denominated  foreign  nations.  They  may,  more  correctly 
perhaps,  be  denominated  domestic  dependent  nations."^ 

In  1871  it  was  enacted  by  Congress  that  no  Indian  nation  or 
tribe  within  the  territory  of  the  United  States  shall  be  acknowl- 
edged or  recognized  as  an  independent  nation;  but  provided 
that  no  obligation  of  any  treaty  lawfully  made  and  ratified 
with  any  such  Indian  nation  or  tribe  prior  to  March  3,  1871, 
shall  be  invalidated  or  impaired.  It  was  probably  under  the 
latter  provision  that  the  State  Department,  in  1894,  ruled,  in  a 
letter  to  the  British  ambassador  in  relation  to  the  case  of  Brit- 
ish subjects  who  claimed  that  they  were  unjustly  removed 
from  the  Choctaw  country,  that  "those  people  who  go  into  that 
country  must  be  held  to  have  done  so  with  full  knowledge  of 
those  treaties  and  of  the  Choctaw  laws  and  must  accept  the 
consequence  if  they  are  found  to  be  there  without  proper 
authority."^ 

The  conditions  existing  between  the  United  States  and  the 
North  American  Indians  bear  a  resemblance  to  those  existing 
between  Great  Britain  and  the  native  princes  of  British  India. 
The  latter,  though  more  civilized  and  more  autonomous,  like 
the  North  American  Indians,  have  no  relations  with  foreign 
powers  or  with  one  another.  In  1891  the  government  of  India 
declared  that  the  principles  of  international  law  have  no  bear- 
ing upon  the  relations  between  the  government  of  India,  as 
representative  of  the  Queen  Empress  and  the  native  states 
under  her  protection.  The  paramount  supremacy  of  the  former 
presupposes  and  implies  the  subordination  of  the  latter.* 

*  C.  J.  Marshall,  Cherokee  Nation  v.  State  of  Georgia,  1821. 

»  Moore's  "Digest,"  vol.  I,  p.  35. 

»  Weatlake,  "Chapters  on  Int.  Law,"  p.  213. 


70  STATES  IN  INTERNATIONAL  LAW 


TOPICS   AND   REFERENCES 

1.  Sovereign  States  Subjects  of  International  Law — 

T,  J.  Lawrence,  "Principles  of  International  Law,"  pars.  34-37. 
Wheaton's  "International  Law,"  par.  16.  Moore's  "Digest," 
vol.  I,  par.  3. 

2.  Definition  and  Characteristics  of  Sovereign  States — 

Holland,  "Jurisprudence,"  44-46.  Scott,  "Cases  of  International 
Law,"  24-37.    Moore's  "Digest,"  vol.  I,  12,  etc. 

3.  Form  of  Government  or  Religion  Not  a  Consideration  in  Foreign 

Relations — 

Phillimore,  "International  Law,"  I,  3d  ed.,  81.  Westlake,  "Chap- 
ters," etc.,  141.     Oppenheim,  part  I,  chap.  I. 

4.  Legal  Equality  of  Sovereign  States — 

Vattel,  "Preliminaries,"  par.  18,  21.  Walker,  "Science  of  Inter- 
national Law,"   115.     Davis,  "International  Law,"  3d  ed.,  36. 

5.  Status  of  States  in  a  Federal  Union  with  Respect  to  International 

Law  and  Treaties — 

Chinese  Exclusion  Act,  U.  S.,  581,  604.  Hart,  "Introduction  to 
Federal  Government,"  x78-192.  Halleck,  vol.  I,  Baker's  4th 
ed.,  78. 

6.  Communities,  Corporations,  etc..  That  Are  Not  Subjects  of  Interna- 

tional Law — 

Lorimer,  "Institutes,  etc."  (1883),  bk.  II,  chaps.  II  and  XVII; 
bk.  Ill,  chap.  II.  Hershey,  "Essentials,"  96.  Baty,  "Inter- 
national Law  in  South  Africa,"  chap.  II. 

7.  Status  of  the  Vatican — 

Halleck,  Baker's  4th  ed.,  vol.  I,  111,  128,  and  153.  Westlake,  2d 
ed.,  I,  37-39.    Oppenheim,  vol.  I,  2d  ed.,  159-162. 

8.  Neutralized  States — 

Hertslet's,  "Map  of  Europe  by  Treaty,"  vol.  II,  979-998,  1415  to 
1450;  vol.  II,  180.  Wheaton's  "Elements  of  International  Law," 
pars.  416-421.    Walker,  "Science  of  Int.  Law,"  448-451. 

9.  Part-Sovereign  States  and  Protectorates — 

Moore's  "Digest,"  vol.  I,  18.  Westlake,  "Int.  Law,"  2d  ed.,  part 
I,  21-25.    Hershey,  "Essentials,"  107-109. 


PRIMARY  SUBJECTS  OF  INTERNATIONAL  LAW        71 

10.  Status  of  North  American  Indians — 

Marshall  in  Cherokee  Nation  v.  State  of  Georgia,  1821,  5  Peters 
I.  Moore's  "Digest,"  35-37.  Justice  Miller  in  U.  S.  v.  Ka- 
gama  (1886),  118  U.  S.  Reports,  375.  Butler,  "Treaty-Making 
Power,"  chap.  XIV. 

11.  Status  of  Native  Princes  of  British  India — 

Westlake's  "Int.  Law,"  2d  ed.,  part  I,  41-43.  Hall,  "Int.  Law," 
27-28.    Tapper,  "Our  Indian  Protectorate." 


CHAPTER  V 

FORMATION,  RECOGNITION,  AND  CONTINUITY  OF  STATES. 
CHANGES  OF  GOVERNMENTS.  DE  FACTO  GOVERN- 
MENTS.    EXTINCTION  OF  STATES 

45.  The  Formation  of  States. — It  is  generally  said  that 
questions  with  respect  to  the  origin  of  states  belong  rather  to 
the  province  of  poUtical  philosophy  than  to  that  of  international 
law.  This  may  be  so  in  an  abstract  sense,  but  it  can  hardly 
be  claimed  to  be  so  in  the  question  of  the  formation  of  a  mod- 
ern sovereign  state  in  its  historical  and  legal  phases.  The 
matter  of  its  recognition  as  a  sovereign  state  and  its  relations 
thus  established  with  other  states  comes  clearly  within  the  do- 
main of  international  law. 

The  actual  system  of  sovereign  states,  or  the  family  of  na- 
tions, in  the  civilized  world  dates  from  the  peace  of  Westphalia 
in  1648,  and  the  members  of  this  system  or  family  in  Europe 
at  that  date  were  members  because  of  their  existence  as  states 
at  the  time.  "The  modern  international  society  was  thus 
founded,"  says  Westlake,  "and  the  states  which  belonged 
to  it  in  1648,  including  those  which  continue  their  identity 
under  different  names  and  with  varied  limits,  as  Savoy  became 
Sardinia,  and  Sardinia  Italy,  may  be  called  its  original  mem- 
bers. Since  1648,  without  reckoning  the  growing  intercourse 
with  states  of  Oriental  civilizations,  new  members  have  been 
added  to  the  full  international  society  by  many  different  proc- 
esses."^ 

The  following  are  circumstances  and  conditions  under  which 

states  can  in  the  present  day  attain  the  qualities  and  char- 

1  Westlake,  "Int.  Law,"  part  I,  p.  43, 
72 


FORMATION,  RECOGNITION,  AND  CONTINUITY        73 

acteristics  necessary  to  their  recognition  as  sovereign  states 
by  the  community  of  nations: 

First.  After  occupation  or  colonization  in  a  territory  with- 
out civilized  population. 

Second.  By  the  attainment,  after  previous  existence,  of  suf- 
ficiently full  civilization  and  standing. 

Third.  By  the  division  of  a  state  into  two  or  more  na- 
tionalities. 

Fourth.  By  attaining  independence  as  a  nationality  from 
the  subjection  of  another  state. 

Fifth.  By  the  combination  of  a  number  of  minor  states  into 
a  federal  union  or  confederation. 

Sixth.  By  the  attainment  of  independence  of  an  insurgent 
political  community. 

46.  The  Formation  of  a  State  by  Occupation  or  Coloniza- 
tion in  a  Territory  Without  Civilized  Population. — A  sovereign 
state  has  been  already  defined  as  among  other  things  a  com- 
munity of  persons  permanently  located  within  a  fixed  territory. 
The  mode  of  acquiring  this  territory  varies  according  to  cir- 
cumstances. It  may  have  been  discovered  before  but  not 
occupied.  A  claim  to  territory  by  a  nation  on  the  ground  of 
discovery  alone  is  not  sufficient;  there  must  be  also  actual 
and  beneficial  occupation.  As  to  the  aboriginal  inhabitants, 
formerly  little  attention  was  paid  to  them  and  their  claims  of 
ownership  and  possession.  The  English  colonies  settled  in 
America,  however,  did  better.  They,  as  a  rule,  paid  for  the 
territory  occupied,  and  in  the  main  this  policy  has  been  fol- 
lowed by  the  United  States.  As  a  rule,  however,  if  the  land 
occupied  is  "peopled  by  uncivilized  tribes  which  are  not  polit- 
ically organized  under  any  government  possessing  the  marks 
of  sovereignty"  an  occupation  by  civilized  peoples  is  tolerated 
or  accepted. 

A  modern  case  under  this  head  is  that  of  the  Transvaal 
Republic.  In  1836  a  number  of  Dutch  farmers  left  Cape 
Colony  and  went  into  an  unsettled  portion  of  South  Africa. 


74  STATES  IN  INTERNATIONAL  LAW 

A  number  of  them  located  themselves  in  the  country  now 
known  as  the  colony  of  Natal  and  established  a  government  of 
their  own.  Upon  the  absorption  of  this  territory  by  Great 
Britain  they  again  moved  and,  joining  other  sections  of  the 
original  party,  settled  in  the  uplands  beyond  the  Vaal  River. 
In  1852  they  were  dealt  with  by  the  British  Government  as  an 
independent  state  or  series  of  states.  Other  powers  followed 
the  lead  of  the  British  Government,  and  from  1864  until  1877 
the  Transvaal  Republic  of  the  Boers  was  an  international  per- 
son and  sovereign  state  in  every  sense.  Subsequently,  there 
was  a  peaceful  annexation,  a  revolt  followed  by  the  establish- 
ment of  a  British  suzerainty,  a  war,  and,  finally,  the  extinction 
of  the  republic  and  a  union  with  the  British  Empire  as  a  self- 
governing  colony.  The  creation  of  the  Congo  Free  State  and 
the  Republic  of  Liberia  are  still  further  modern  examples  of 
state  formation  under  this  head.^ 

47.  The  Formation  of  a  State  by  the  Attainment,  after 
Previous  Existence,  of  Sufficiently  Full  Civilization  and  Stand- 
ing.— Under  this  head  we  may  mention  the  entrance  of  Russia 
into  the  community  of  nations  in  the  eighteenth  century. 
Before  that  time,  though  Russia  was  a  Christian  empire,  she 
had  but  little  contact  and  intercourse  with  central  and  western 
Europe.  In  these  times,  in  conjunction  with  Poland,  Sweden, 
and  Denmark,  it  may  be  said  that  Russia  formed  another  sys- 
tem or  community  of  nations  with  retarded  civilization.  As  a 
consequence  of  the  reforming  spirit  of  Peter  the  Great  and  his 
ambitious  projects,  Russia  of  her  own  volition  entered  in  the 
European  family  of  nations  and  the  two  communities  of  states 
became  fused  in  one.^ 

By  the  seventh  article  of  the  treaty  of  Paris  of  1856,  En- 
gland, Austria,  France,  Prussia,  Russia,  and  Sardinia  declared 
the  Sublime  Porte  admitted  to  participate  in  the  advantages 
of  the  public  law  and  system  of  Europe.    This  agreement  was 

^  Lawrence's  "Principles,"  4th  ed.,  pp.  84,  85. 
*  Westlake,  "Int.  Law,"  part  I,  p.  45. 


FORMATION,  RECOGNITION,  AND  CONTINUITY        75 

a  matter  of  public  policy  on  the  part  of  the  nations  concerned 
rather  than  as  a  recognition  of  the  full  attainment  of  civiliza- 
tion on  the  part  of  Turkey.  In  fact,  the  full  application  of 
the  tenets  of  international  law  was  not  made  to  Turkey,  as  the 
foreign  consular  jurisdictions  remained  and  still  remain  in 
Turkey  under  the  name  of  capitulations  as  another  form  of 
exterritoriality. 

Japan  is  an  example  under  this  heading  and,  unlike  Turkey, 
became  a  full  member  of  the  international  society  when,  by 
action  of  the  European  and  American  powers,  she  was  freed 
from  the  foreign  consular  jurisdiction  and  the  condition  of  ex- 
territoriality. Upon  the  absorption  of  Korea  by  Japan  she  par- 
took as  a  province  of  the  status  of  Japan  in  this  respect. 

48.  Formation  of  States  by  the  Division  of  a  State  into  Two 
or  More  Nationalities. — A  case  under  this  head  came  with 
the  separation  of  Portugal  from  Spain  and  the  later  peaceful 
separation  of  Brazil  from  Portugal,  of  which  state  Brazil  was 
a  possession.  The  King  of  Portugal  became  the  Emperor  of 
Brazil;  since  that  time  both  countries  have  become  republics. 
Another  case  is  the  subdivision  of  the  old  republic  of  Colombia, 
which  divided  itself,  in  1832,  into  Venezuela,  Ecuador,  and 
New  Granada,  the  latter  becoming,  in  1863,  the  present  re- 
public of  Colombia,  from  which  Panama  separated  in  1903. 

The  separation  of  Texas  is  also  a  case  in  point,  as  it  existed 
some  little  time  as  an  independent  republic  before  it  was  an- 
nexed as  a  State  by  the  United  States.  Probably  the  most 
recent  creation  of  new  states  by  separation  is  the  peaceable 
one  of  Norway  from  Sweden  in  1905. 

49.  The  Attainment  of  Independence  by  Relief  from  the 
Subjection  of  Another  State. — A  case  in  point  under  this  head 
was  the  erection  of  Belgium  into  a  kingdom  after  the  Belgian 
insurrection  of  1830,  thus  relieving  the  Belgian  or  Flemish 
people  from  the  subjection  of  the  United  Netherlands  and  the 
Dutch  monarchy.  England  and  France  took  up  the  cause  of 
the  insurgents,  and  finally  the  other  European  powers  joined 


76  STATES  IN  INTERNATIONAL  LAW 

them,  which  led  to  the  acceptance  of  the  new  order  of  things 
by  the  Netherlands  in  1839,  the  new  kingdom  having  been 
made  a  neutralized  power.  Greece,  Rumania,  and  Servia 
were  carved  out  of  Turkey,  Russia  having  been  the  leading 
power  to  favor  these  emancipations.  Bulgaria  and  Monte- 
negro were  also  freed  by  the  action  of  the  European  powers 
and  have  become  independent  kingdoms  with  certain  restric- 
tions, the  principal  one  being  that  of  religious  toleration, 
which  so  far  has  been  quietly  ignored  by  Rumania. 

The  states  just  mentioned  under  this  head  have  become  so 
partly  by  their  own  exertions,  partly  by  the  aid  of  the  great 
powers  of  Europe.^ 

50.  The  Combination  of  a  Number  of  Minor  States  into  a 
Union  or  Confederation. — ^This,  when  a  federal  union,  is  called 
in  German  a  Bundesstaat,  and  refers  to  unions  in  which  the 
central  authority  deals  directly  with  foreign  powers  and  exer- 
cises the  external  sovereignty  of  the  federation.  A  federation 
of  this  kind  does  not  differ,  so  far  as  international  law  is  con- 
cerned, from  any  other  ordinary  sovereign  state.  The  best 
examples  at  the  present  time  under  this  head  are  the  United 
States  since  the  adoption  of  the  Constitution,  Switzerland 
since  1874,  and,  to  a  less  degree,  the  German  Empire  since  its 
establishment  after  the  Franco-German  War  of  1871.  There 
are  other  unions  that  represent  sovereign  states,  like  the  incor- 
porated union  of  the  United  Kingdom  of  Great  Britain  and 
Ireland  in  its  successive  states,  of  the  incorporation  of  England 
and  Scotland  in  1707,  and  of  Ireland  in  1800.  Austria  and 
Hungary  are  externally  the  Austro-Hungarian  Empire,  though 
internally  the  empire  is  known  as  the  dual  monarchy,  whUe 
Sweden  and  Norway  were  united  as  a  common  nation  from 
1814  until  1905. 

51.  The  Attainment  of  Independence  by  an  Insurgent 
Community. — This  is  the  sixth  and  last  method  to  be  discussed. 
The  evolution  of  a  state  by  a  successful  insurrection  or  revolu- 

»  Westlake,  "Int.  Law,"  part  I,  pp.  46,  47. 


FORMATION,  RECOGNITION,  AND  CONTINUITY        77 

tlon  is  also  the  most  important  and  interesting  of  the  methods 
of  the  formation  of  a  sovereign  state.  It  generally  causes 
different  stages  of  progress  toward  independence  and  recog- 
nition of  statehood  and  is  likely  to  involve  the  recognition  of 
various  conditions  by  other  states  of  the  community  of  nations. 

In  the  forcible  separation  and  formation  of  a  new  state  there 
are  usually,  but  not  necessarily,  two  antecedent  stages  through 
which  the  new  community  passes  before  arriving  at  successful 
independence.  The  first  or  preliminary  stage  is  now  named 
as  that  of  insurgency  and  takes  place  shortly  after  the  appeal 
to  arms;  the  second  is  when  the  insurrection  has  established 
itself  with  sufficient  stability  and  strength  to  have  conceded 
the  state  of  belligerency  or  the  rights  of  belligerents,  so  far  as 
the  war  is  concerned,  afloat  and  ashore. 

In  some  cases  the  insurrection  may  not  get  beyond  the  first 
stage,  that  of  insurgency,  as  in  the  Brazilian  insurrection  of 
1894,  or  it  may  reach  the  second  stage  of  belligerency  and  get 
no  further,  as  with  the  Southern  Confederacy  of  1861-5,  or  it 
may  gain  its  end  as  insurgents,  never  having  been  recognized 
as  belligerents,  as  in  the  case  of  the  Chilian  insurgents  of 
1891.^ 

52.  The  State  of  Insurgency. — Practically  every  revolution 
or  civil  war  begins  in  insurrection,  and  generally  neutrals  be- 
come at  once  affected ;  this  is  especially  the  case  when  hostili- 
ties extend  to  the  territorial  waters  of  the  contestants  or  to 
the  high  seas.  The  right  of  insurgents  to  carry  on  hostilities 
on  land  within  the  territory  of  the  parent  state  has  never  been 
challenged,  but  when  the  hostilities  originate  or  reach  the  sea- 
ports and  the  coastal  waters  of  the  country  concerned  or  ex- 
tend to  the  high  seas  an  anomalous  condition  arises  under 
former  usages  and  the  ordinary  rules  of  international  law.  This 
creates  the  necessity  for  an  intelligent  dealing  under  interna- 
tional law  with  the  state  of  insurgency  as  anterior  to  the  status 
of  belligerency.     Progress  has  already  been  made  in  this  direc- 

1  Stockton's  "Manual,"  p.  33. 


78  STATES  IN  INTERNATIONAL  LAW 

tion,  and  especially  as  to  the  definition  of  the  condition  of 
affairs  existing  between  peace  and  civil  war. 

The  definition  of  the  state  of  insurgency  generally  used  is 
that  contained  in  the  decision  of  the  case  of  the  Three  Friends, 
made  by  Chief  Justice  Fuller  in  1897,  during  the  Cuban  insur- 
rection which  preceded  the  Spanish- American  War.  "The  dis- 
tinction," the  chief  justice  goes  on  to  say,  "between  recogni- 
tion of  belligerency  and  recognition  of  a  condition  of  political 
revolt,  between  recognition  of  the  existence  of  war  in  the  mate- 
rial sense  and  of  war  in  a  legal  sense,  is  sharply  illustrated  by 
the  case  before  us.  For  here  the  political  department  has  not 
recognized  the  existence  of  a  de  facto  belligerent  engaged  in 
hostility  with  Spain  but  has  recognized  the  existence  of  insur- 
rectionary warfare  prevailing  before,  at  the  time,  and  since  this 
forfeiture  is  alleged  to  have  occurred."^ 

The  proper  dealing  with  the  state  of  insurgency  on  land  is 
well  outlined  in  a  despatch  of  Secretary  Hay  to  Mr.  Bridgman, 
minister  to  Bolivia  in  1899,  as  follows:  "You  will  understand 
that  you  can  have  no  diplomatic  relations  with  the  insurgents 
implying  their  recognition  by  the  United  States  as  the  legiti- 
mate government  of  Bolivia,  but  that,  short  of  such  recogni- 
tion, you  are  entitled  to  deal  with  them  as  the  responsible 
parties  in  local  possession,  to  the  extent  of  demanding  for  your- 
self, and  for  all  Americans  within  reach  of  insurgent  authority 
within  the  territory  controlled  by  them,  fullest  protection  for 
life  and  property." ^ 

The  appearance  of  insurgent  vessels  of  war  upon  the  high 
seas  flying  a  flag  not  recognized  by  the  various  sovereign  states 
has  created  an  anomalous  condition  of  affairs  and  caused  such 
vessels  to  be  classed  as  akin  to  pirates.  Even  at  so  late  a  date 
as  1885  in  the  case  of  the  vessel  Ambrose  Light  it  was  declared 
by  the  decision  of  a  United  States  court  that  such  an  insurgent 
armed  vessel  was  technically  a  pirate.     The  weight  of  authori- 

»  Three  Friends  case  (1897),  Scott's  "Cases,"  p.  743. 
•Cited  by  Moore's  "Digest,"  vol.  I,  p.  243. 


FORMATION,  RECOGNITION,  AND  CONTINUITY       79 

tative  opinion  is  now,  however,  against  such  holding,  and,  as 
Hall  observes:  "  It  is  impossible  to  pretend  that  acts  which 
are  done  for  the  purpose  of  setting  up  a  legal  state  of  things, 
and  which  may,  in  fact,  have  already  succeeded  in  setting  it 
up,  are  piratical  for  want  of  an  external  recognition  of  their 
validity,  when  the  grant  of  that  recognition  is  properly  depen- 
dent in  the  main  upon  the  existence  of  such  a  condition  of  affairs 
as  can  only  be  produced  by  the  very  acts  in  question.  It  would 
be  absurd  to  require  a  claimant  to  justify  his  claim  by  doing 
acts  for  which  he  may  be  hanged.  Besides,  though  the  ab- 
sence of  competent  authority  is  the  test  of  piracy,  its  essence 
consists  in  the  pursuit  of  private  as  contrasted  with  public 
ends."  1 

The  recognition  of  the  status  of  insurgency  by  third  or  neu- 
tral powers  does  not  relieve  such  powers  from  the  enforcement 
of  their  neutrality  laws.  It  relieves  the  insurgents  from  treat- 
ment as  pirates  and,  within  their  territorial  limits  which  they 
have  acquired  or  are  contending  for,  it  is  not  too  much  to  say 
that  they  have  the  right  to  prevent  the  supplying  of  contra- 
band to  the  other  belligerent  from  any  source,  but  this  right 
does  not  extend  to  the  high  seas  nor  is  it  accompanied  with 
the  right  of  general  visit  and  search  or  the  usual  belligerent 
rights  outside  the  field  of  their  operations. 

The  cases  of  insurgency  afloat  in  recent  times  are  as  follows: 
In  1873  the  Spanish  vessels  of  war  in  Cartagena  Harbor,  Spain, 
fell  into  the  hands  of  insurgents,  whom  the  Madrid  Govern- 
ment at  once  proclaimed  as  pirates;  but  the  British,  French,  and 
German  Governments  instructed  their  naval  commanders  that 
they  were  not  to  be  interfered  with  so  long  as  the  lives  or  prop- 
erty of  their  respective  subjects  were  not  affected. 

In  1877  the  steamer  Montezuma,  a  Spanish  vessel,  was  seized 
by  the  Cuban  insurgents  and,  under  the  new  name  of  the 
Cespedes,  was  sent  to  attack  Spanish  merchantmen  off  the  Rio 
Plata.    The  government  of  Spain  requested  Brazil  to  treat  this 

1  Hall,  6th  ed.,  p.  255. 


80  STATES  IN  INTERNATIONAL  LAW 

vessel  as  a  pirate  if  she  entered  Brazilian  ports.  This  Brazil 
refused  to  do  on  the  ground  that  the  vessel  did  not  fulfil  the 
definition  of  a  pirate  and,  furthermore,  confined  her  hostilities 
exclusively  toward  Spain. 

In  1891  the  congressional  party  of  Chile  seized  the  major 
portion  of  the  Chilian  navy,  and  was  allowed  freedom  of  opera- 
tion by  the  various  foreign  naval  forces  in  Chilian  waters  and 
thereabouts,  excepting  as  to  blockade  against  foreign  vessels. 
The  seizure  of  contraband  in  neutral  vessels  was,  however, 
acquiesced  in.  This  insurrection  became  finally  successful,  and 
its  government  was  duly  recognized  as  the  titular  government 
of  Chile. 

In  1893  the  greater  part  of  the  Brazilian  fleet  revolted,  but, 
as  at  first  in  the  Chilian  insurrection,  there  was  no  territorial 
possession  in  the  hands  of  the  insurgents.  Admiral  Benham, 
the  commander-in-chief  of  the  American  naval  forces,  took  the 
ground  that,  during  the  hostilities  in  the  harbor  of  Rio,  any 
American  vessels  that  moved  about  the  harbor  did  so  at  their 
own  risk,  especially  if  they  crossed  the  fire  from  the  insurgents 
upon  the  city  of  Rio  or  upon  the  fortifications  of  the  harbor, 
but  that  American  merchant  vessels  were  to  be  protected  dur- 
ing their  loading  and  unloading  of  cargo.  No  blockade  was 
acknowledged  as  existing  so  far  as  foreign  vessels  were  con- 
cerned. The  landing  of  contraband  or  military  supplies  to  the 
belligerents  on  shore  from  neutral  vessels  in  Brazilian  waters 
alone  could  be  stopped  by  the  insurgents  as  a  logical  result  of 
their  military  operations.  Practically  the  right  of  the  insur- 
gents to  carry  on  hostilities  afloat  and  ashore  was  recognized 
except  toward  neutrals  in  such  matters  as  the  right  of  visit  and 
search,  blockade,  and,  generally,  as  belligerents  in  neutral  ports. 
Secretary  Hay,  in  1902,  said  in  this  connection  that  "to  deny 
to  an  insurgent  the  right  to  prevent  the  enemy  from  receiving 
material  aid  cannot  well  be  justified  without  denying  the  right 
of  revolution." 

"Perhaps,"  Professor  Moore  says,  "the  clearest  recognition 


FORMATION,  RECOGNITION,  AND  CONTINUITY        81 

of  the  state  of  insurgency  or  revolt  as  a  distinctive  condition 
may  be  found  in  the  case  of  the  Cuban  insurrection,  from  1895 
to  1898.  On  June  12,  1895,  the  President  of  the  United  States 
issued  a  proclamation  reciting  that  Cuba  was  'the  seat  of  civil 
disturbances,  accompanied  by  armed  resistance  to  the  authority 
of  the  established  government  of  Spain,'  and  admonishing  all 
persons  within  the  jurisdiction  of  the  United  States  to  abstain 
from  taking  part  in  the  disturbances  adversely  to  that  govern- 
ment, by  doing  any  of  the  acts  prohibited  by  the  neutrality 
laws."  In  his  annual  message  of  December  2,  1895,  the  Presi- 
dent stated  that  Cuba  was  greatly  disturbed  and  described  the 
condition  of  things  as  an  insurrection  of  flagrant  condition  of 
hostilities  and  a  "sanguinary  and  fiercely  conducted  war." 
On  July  27,  1896,  he  issued  another  proclamation,  referring 
again  to  the  civil  disturbances  in  the  island  and  the  provisions 
of  the  neutrality  laws.  In  his  annual  message  of  December 
7,  1896,  he  stated  that  "the  insurrection  in  Cuba  still  con- 
tinues with  all  its  perplexities,"  and  reviewed  the  situation  at 
length.^ 

In  1896  both  houses  of  Congress  passed  a  concurrent  resolu- 
tion expressing  the  opinion  that  a  condition  of  public  war  ex- 
isted requiring  or  justifying  the  recognition  of  a  state  of  bellig- 
erency in  Cuba.  But  the  power  of  such  recognition  remained 
with  the  President,  who  wisely  determined  against  such  policy. 
Finally,  on  the  11th  of  April,  1898,  President  McKinley  in  a 
special  message  declared  that  the  intervention  of  the  United 
States  in  the  insurrection  of  Cuba  would  be  justified  on  the 
grounds  of  humanity,  protection  to  our  citizens,  protection  of 
our  commerce,  and  to  relieve  us  of  a  constant  menace  to  our 
peace.    War  soon  followed. 

53.    The   State   of   Belligerency   and   Its  Recognition. — A 

condition  may  be  attained  in  an  insurrection  which  entitles 
the  insurgents  to  the  status  and  consequent  rights  of  bellig- 
erency.    The  status  is  that  of  a  belligerent  nation  so  far  as 

1  Moore's  "Digest,"  I,  p.  242. 


82  STATES  IN  INTERNATIONAL  LAW 

warfare  alone  is  concerned.  The  requirements  are  that  a  state 
of  war  exists,  that  the  insurgents  have  an  actual  and  respon- 
sible political  organization  for  government,  that  they  possess 
fixed  territory  with  resources  and  population,  and  that  they 
have  armed  forces  capable  of  carrying  on  war  like  a  state  in 
accordance  with  the  conventional  rules  of  warfare  on  shore  and 
afloat.  The  insurgent  government  must  have  the  power  and 
will  to  protect  neutrals  and  to  fulfil  neutral  obligations.  If  the 
parent  state  exchanges  prisoners  with  the  insurgents,  exercises 
the  right  of  blockade  of  the  insurgent  ports  against  neutral 
commerce,  and  exercises  the  right  of  searching  neutral  vessels 
at  sea,  these  latter  clinch  the  matter  and  establish  the  status 
of  belligerency  and  make  its  recognition  by  a  neutral  inoffen- 
sive, especially  if  neutral  rights  and  interests  are  affected  or 
likely  to  be  affected  by  the  continuance  of  the  war. 

The  effect  of  the  recognition  of  a  state  of  belligerency  by 
other  states  transforms  the  insurgents  into  legal  belligerence 
and  should  require  the  parent  state  to  treat  them  as  such  and 
not  as  traitors  or  pirates  while  the  war  is  in  operation.  So  far 
as  the  neutral  governments  and  the  parent  state  are  concerned, 
the  status  of  neutrality  becomes  effective  with  its  limitations 
upon  belligerents,  especially  as  to  their  use  of  neutral  territory 
and  their  conduct  of  war  at  sea.  Blockades  must  be  properly 
notified  and  declared,  and  neutral  vessels  if  captured  or  de- 
tained must  be  condemned  by  properly  constituted  prize-courts 
in  order  to  have  a  valid  transfer  of  property. 

Sir  Alexander  Cockburn,  in  his  opinion  at  the  Geneva  arbi- 
tration tribunal  upon  the  question  of  a  premature  recognition 
of  the  belligerency  of  the  Southern  G)nfederacy,  said  that 
"the  principles  by  which  a  neutral  state  should  be  governed 
as  to  the  circumstances  under  which  or  the  period  at  which  to 
acknowledge  the  belligerent  status  of  insurgents  have  been 
nowhere  more  fully  and  ably,  or  more  fairly,  stated  than  by 
Mr.  Dana  in  his  edition  of  Wheaton  in  a  note  to  Sec.  23." 
This  opinion  has  been  generally  accepted  by  English  and  Amer- 


FORMATION,  RECOGNITION,  AND  CONTINUITY        S3 

ican  writers,  and  the  article  by  Mr.  Richard  Henry  Dana  will 
be  found  in  full  in  the  Appendix  of  this  book.^ 

In  the  war  for  the  Union  of  1861-5  a  recognition  of  the 
belligerency  of  the  Confederate  States  by  Great  Britain  was 
made  by  the  proclamation  of  neutrality  of  the  Queen  of  En- 
gland under  date  of  May  13,  1861.  The  French  declaration 
of  neutrality  was  issued  June  10,  1861,  and  that  of  Spain  on 
June  17,  these  being  followed  shortly  afterward  by  the  other 
maritime  powers.  The  recognition  by  Great  Britain  of  the 
belligerency  of  the  Southern  States  was  received  with  great 
disfavor  by  the  government  and  people  of  the  Northern  States 
as  being  untimely  and  precipitous  and  as  an  evidence  of  un- 
friendliness. Time  has  softened  the  feelings  which  were 
aroused  by  this  act  of  Great  Britain — the  first  nation  to  an- 
nounce recognition  of  the  belligerency  of  the  Southern  States 
and  its  intention  to  observe  neutrality  in  the  Civil  War  just 
begun.  From  a  legal  point  of  view,  and  from  the  point  of  view 
of  international  law,  it  is  difficult  not  to  concede  that  the  action 
of  Great  Britain  was  one  of  obligation  under  the  circumstances 
and  not  one  of  unfriendliness.  In  the  correspondence  between 
our  minister  to  Great  Britain,  Mr.  Charles  Francis  Adams,  and 
Earl  Russell,  then  the  British  foreign  minister,  in  1868,  the 
question  was  fully  discussed  and  there  is  strong  ground  in  the 
position  taken  by  Earl  Russell.  "He  referred,"  says  Mr.  Dana, 
"to  the  extent  of  the  territory,  population,  and  resources  of 
the  rebellion;  the  existence  of  its  completely  organized  state 
and  general  governments,  its  unequivocal  determination  to 
treat  as  war,  by  sea  and  land,  any  acts  of  authority  which  the 
United  States,  on  the  other  hand,  had  equally  determined  to 
exert;  the  long  antecedent  history  and  preparations  for  this 
revolution  and  the  certainty  of  the  magnitude  and  extent  of 
the  war  and  its  rapid  development  whenever  it  should  begin, 
and  also,  in  consequence,  that  it  would  require  the  instant 
decision  of  maritime  questions  by  neutral  vessels  of  war  and 

*  Appendix  I. 


84  STATES  IN  INTERNATIONAL  LAW 

merchantmen  alike.  Hence  he  argued  that  it  was  necessary 
for  England  to  determine  at  once,  upon  facts  and  probabilities, 
whether  she  would  permit  the  right  of  search  and  blockade  as 
acts  of  war,  and  whether  the  letters  of  marque  and  public  ships 
of  the  rebels,  which  might  appear  at  once  in  many  parts  of 
the  world,  should  be  treated  as  pirates  or  lawful  belligerents."* 
Earl  Russell  further  asserted  "  that  the  proclamation  of  Pres- 
ident Lincoln  establishing  a  blockade  under  date  of  April  19, 
1861,  was  itself  a  recognition  and  the  first  recognition  of  the 
state  of  belligerency  of  the  Confederates  States."  As  to  the 
particular  question  of  the  precipitate  nature  of  the  Queen's 
proclamation,  he  says  that  "it  was,  on  the  contrary,  your  own 
government  which,  in  assuming  the  belligerent  right  of  block- 
ade, recognized  the  Southern  States  as  belligerents.  Had  they 
not  been  belligerents,  the  armed  ships  of  the  United  States 
would  have  had  no  right  to  stop  a  single  British  ship  upon  the 
high  seas." 

In  the  decisions  of  the  Supreme  Court  of  the  United  States 
the  whole  matter  is  found  cogently  expressed  in  the  opinion 
that  "the  rights  and  obligations  of  the  belligerent  were  con- 
ceded to  the  Confederate  Government,  in  its  military  character 
very  soon  after  the  war  began,  from  motives  of  humanity  and 
expediency,  by  the  United  States."^ 

I  have  already  narrated  the  history  of  the  insurrections  in 
Cuba  in  relation  to  the  status  of  insurgency.  President  Mc- 
Kinley,  in  1897,  said  in  regard  to  the  further  recognition  of  bel- 
ligerency that  such  a  recognition  would  weigh  heavily  in  behalf 
of  Spain.  "Possessing  a  navy,"  he  said,  "and  controlling  the 
ports  of  Cuba,  her  maritime  rights  could  be  asserted  not  only 
for  the  military  investments  of  the  island,  but  up  to  the  margin 
of  our  own  territorial  waters."' 

The  manner  in  which  the  status  and  rights  of  belligerency 

1  Dana's  "  Wheaton,"  8th  ed.  (Appendix  I). 

2  Moore's  "Digest,"  I,  p.  192.     Thorington  v.  Smith,  8  Wall. 
"Moore's  "Digest,"  I,  p.  199. 


FORMATION,  RECOGNITION,  AND  CONTINUITY        85 

are  accorded  to  insurgents  varies;  it  may  be  done  tacitly  or  by 
express  declarations  or  proclamations  of  neutrality,  such  as 
that  issued  by  Great  Britain  in  our  Civil  War,  or  as  in  declara- 
tions of  neutrality  in  a  regular  war,  with  sovereign  states  as 
belligerents. 

"Recognition  of  belligerency,"  says  Hall,  "when  once  it  has 
been  accorded,  is  irrevocable  except  by  agreement,  so  long  as 
the  circumstances  exist  under  which  it  was  granted;  for,  al- 
though as  between  the  grantor  and  grantee  it  is  a  concession 
of  pure  grace  and  therefore  revocable,  as  between  the  grantor 
and  third  parties  new  legal  relations  have  been  set  up  by  it 
which,  being  dependent  on  the  existence  of  a  state  of  war, 
cannot  be  determined  at  will  so  long  as  the  state  of  war  con- 
tinues in  fact.  In  other  words,  a  state,  whether  it  be  belligerent 
or  neutral,  cannot  play  fast  and  loose  with  the  consequences 
of  a  certain  state  of  things;  it  cannot  regulate  its  conduct  sim- 
ply by  its  own  convenience."^ 

54.  The  Recogmtion  of  a  New  State. — The  recognition  of 
the  independence  of  a  state  and  of  its  membership  in  the  family 
of  nations  is  the  last  of  the  conditions  which  are  passed  through 
by  peoples  or  political  organizations  in  insurrection  before  the 
attainment  of  full  status  as  a  sovereign  state.  This  recogni- 
tion is  a  matter  of  much  gravity,  as  it  involves  possible  dis- 
putes with  the  parent  state.  Of  course,  if  there  should  be  a 
tacit  or  definite  recognition  of  the  independence  of  a  com- 
munity in  revolt  by  the  parent  state,  its  recognition  by  other 
nations  would  follow  almost  automatically.  Otherwise  the 
recognition  of  independence  involves  a  question  of  fact  as  well 
as  a  question  of  interests  and  policy.  The  parent  state  some- 
times delays  a  recognition  of  a  state  which  has  actually  at- 
tained independence  so  unreasonably  long  that  the  interests 
of  other  states  and  possibly  their  sympathies  make  it  neces- 
sary or  advisable  for  them  to  recognize  such  independence 
without  waiting  for  the  recognition  of  the  parent  state. 

»  Hall,  6th  ed.,  p.  35. 


86  STATES  IN  INTERNATIONAL  LAW 

Holland,  for  instance,  was  not  recognized  by  Spain  until 
nearly  seventy  years  after  the  declaration  of  its  independence, 
and  the  recognition  of  the  Spanish- American  republics  by  the 
mother  country  took  place  in  1834,  the  first  revolt  and  declara- 
tion of  independence  having  been  by  one  of  them  in  1815.  The 
final  recognition  of  the  independence  of  the  United  Colonies  in 
North  America  by  Great  Britain  terminated  the  Revolutionary 
War,  though  the  premature  recognition  of  the  independence  of 
the  American  colonies  by  France,  in  1778,  was  at  once  followed 
by  a  declaration  of  war  against  that  country  by  the  parent 
state.  Great  Britain.  In  1782,  when  Great  Britain  herself 
recognized  our  independence,  the  other  states  followed  in  the 
recognition  without  giving  offence.  The  independence  of 
Panama  was  recognized  virtually  by  the  United  States  in  three 
days  after  its  creation  and  formally  within  ten  days  after  its 
declaration  of  independence.  Naturally,  Colombia  was  af- 
fronted, and,  as  Hershey  says,  "such  action  on  the  part  of  the 
United  States  was  really  a  case  of  political  intervention."^ 
The  United  States  recognized  the  independence  of  Cuba,  in 
1898,  by  a  declaration  that  the  people  of  Cuba  were  free  and 
independent.  This  may  also  be  fairly  called  an  instance  of 
intervention.  It  can  be  seen  that  the  time  of  the  recognition 
of  the  independence  of  a  new  state  plays  an  important  part. 
On  this  subject  Oppenheim  says:  "But  between  this  recog- 
nition as  a  belligerent  power  and  the  recognition  of  these  in- 
surgents and  their  part  of  the  country  as  a  new  state,  there  is  a 
broad  and  deep  gulf,  and  the  question  is  precisely  at  what 
exact  time  the  recognition  of  a  new  state  may  be  given  instead 
of  a  recognition  as  a  belligerent  power.  For  an  untimely  and 
precipitate  recognition  as  a  new  state  is  a  violation  of  the  dig- 
nity of  the  mother  state,  to  which  the  latter  need  not  patiently 
submit." ' 

The  aspects  of  a  recognition  of  the  independence  of  a  new 

1  Hershey's  "Essentials,"  p.  124. 
*  Oppjenheim,  2d  ed.,  vol.  I,  p.  119. 


FORMATION,  RECOGNITION,  AND  CONTINUITY        87 

state  from  the  point  of  view  of  other  states  and  the  point  of 
view  of  the  new  state  is  given  in  the  following  opinions  of 
Westlake  and  Rivier, 

Westlake  says:  "  When  insurgents  aiming  at  separation  have 
established  a  state  occupying  a  certain  tract  of  territory  with  su- 
preme authority  and  a  good  prospect  of  permanence,  the  ques- 
tion of  the  recognition  of  the  new  state  by  foreign  powers 
arises.  They  will  find  that  intercourse  with  the  local  author- 
ities, of  a  more  regular  and  political  kind  than  can  be  supplied 
by  the  expedients  resorted  to  during  the  earlier  stage  of  the 
insurrection,  is  necessary  for  their  interests  and  that  of  those 
of  their  subjects  residing  in  the  territory  or  trading  with  it. 
The  new  authorities,  in  the  position  which  they  have  achieved, 
will  probably  decline  to  tolerate  irregular  expedients  any 
longer,  and  the  old  government,  being  dispossessed  in  that 
part  of  its  territory,  will  be  unable  to  supply  the  need.  In 
these  circumstances  the  case  of  necessity  will  have  arisen 
which,  by  depriving  the  recognition  of  all  gratuitous  character, 
will  take  from  the  old  government  all  reasonable  ground  for 
offence  at  it.  It  cannot  be  expected  that  foreign  powers  shall 
wait  till  the  old  government  has  itself  made  such  recognition 
or  even  till  it  has  withdrawn  from  all  armed  contest  if  there  is 
no  reasonable  chance  of  its  success  in  that  contest.  When  the 
United  States  and  England  recognized  the  Spanish-American 
republics,  Spain  still  maintained  small  forces  at  a  few  points  in 
her  vast  former  possessions,  but  their  recognition  was  not 
further  postponed  by  England  except  in  the  case  of  one  of  them 
and  there  only  because  of  the  internal  instability  of  the  new 
government."^ 

On  the  other  hand,  "recognition,"  says  Rivier,  **  is  the 
assurance  given  to  a  new  state  that  it  will  be  permitted  to  hold 
its  place  and  rank,  in  the  character  of  an  independent  political 
organism,  in  the  society  of  nations.  The  rights  and  attributes 
of  sovereignty  belong  to  it,  independently  of  all  recognition, 
>  Westlake,  "lut.  Law,"  I,  p.  67. 


88  STATES  IN  INTERNATIONAL  LAW 

but  it  is  only  after  it  has  been  recognized  that  it  is  assured  of 
exercising  them.  Regular  political  relations  exist  only  between 
states  that  reciprocally  recognize  them.  Recognition  is  there- 
fore useful,  even  necessary,  to  the  new  state.  It  is  also  the 
constant  usage,  when  a  state  is  formed,  to  demand  it.  Except 
in  consequence  of  particular  conventions,  no  state  is  obliged 
to  accord  it.  But  the  refusal  may  give  rise  to  measures  of 
retorsion.  When,  after  the  formation  of  the  kingdom  of  Italy, 
certain  German  states  persisted  in  refusing  to  recognize  it. 
Count  Cavour  withdrew  the  exequaturs  of  their  consuls. 
Recognition  was  then  accorded."^ 

A  state  may  be  recognized  as  a  sovereign  state  without  being 
considered  a  member  of  the  family  of  nations.  This  was  the 
case  of  Turkey  before  1856  and  is  the  case  of  some  Asiatic 
states,  like  China  and  Siam,  with  whom  European  and  Amer- 
ican states  entertain  continual  relations  while  refusing  to  com- 
prehend them  among  the  society  of  nations. 

The  manner  of  recognition  of  a  new  state  varies;  it  may  be 
by  treaty,  by  formal  declaration,  or  by  proclamation.  A 
recognition  of  the  independence  of  a  state  may  be  made  by 
implication,  by  the  sending  or  receiving  of  diplomatic  agents 
and  the  opening  of  full  diplomatic  intercourse,  or  by  the  grant- 
ing of  exequaturs  to  consuls.  It  may  be  done  by  the  formal 
recognition  of  the  flag  of  the  new  state  by  a  salute  of  guns,  as 
France  did  with  respect  to  the  American  flag  at  the  French 
port  of  Quiberon.  Recognition  may  also  be  a  collective  one 
of  nations  or  of  European  powers,  as  of  Belgium  in  1831,  of 
Greece  in  1832,  of  Rumania,  Servia,  and  Montenegro  in  1878, 
and  of  Bulgaria  in  1908. 

55.  Continuity  of  States. — In  speaking  of  a  state  we  are 
apt  at  times  to  consider  that  word  as  synonymous  with  the 
government  of  the  state.  It  must,  however,  be  distinctly 
borne  in  mind  that  the  government  is  but  the  agent  of  the 
state.  There  must  be  a  government  in  order  that  the  state 
» Quoted  by  Moore's  "Digest,"  vol.  I,  p.  72. 


FORMATION,  RECOGNITION,  AND  CONTINUITY        89 

should  fulfil  the  necessary  conditions  of  statehood,  but  the 
state  exists  no  matter  what  form  of  government  may  be  in 
power  and  also  no  matter  what  change  may  be  made  in  the  form 
of  government  and  also  while  the  change  is  being  made.  Hence, 
although  the  government  changes,  the  state  remains,  with  all  of 
its  rights  and  with  all  of  its  obligations  unimpaired.  This 
principle  of  the  continuity  of  states  requires  that  a  state  should 
accept  the  obligations  of  its  predecessors,  even  if  the  successor 
should  claim  the  earlier  government  as  a  usurpation,  so  long 
as  it  is  the  actual  government  or,  as  it  is  technically  termed,  the 
de  facto  government,  either  in  possession  of  the  capital  and  the 
machinery  of  the  government  or  the  major  portion  of  the 
territory,  and  having  recognition  as  such.  The  governments 
of  Louis  XVIII  and  of  Louis  Philippe  in  France,  for  instance, 
as  far  as  practicable  reimbursed  foreigners  for  losses  occasioned 
by  the  government  of  Napoleon,  while  the  King  of  Naples 
made  compensation  to  foreign  subjects  for  the  acts  of  Murat. 
By  an  application  of  this  principle,  if  a  monarch  assume  a 
higher  title — that  is,  from  king  to  emperor — he  does  not  raise 
himself  in  the  scale  of  international  precedence.  "The  rank 
of  a  state  is  part  of  its  relation  to  other  states  and,  without 
their  consent,  is  not  affected  by  a  change  of  internal  designa- 
tion." ^ 

Besides  the  continuance  of  states  throughout  changes  of 
government,  continuity  extends  also  through  changes  of  ter- 
ritory, as,  for  example,  when  a  portion  of  the  territory  of  a  state 
is  ceded  by  one  state  to  another,  the  continuity  of  neither 
state  is  affected.  Of  course,  this  has  certain  limitations  in  the 
treaties  and  obligations  of  the  two  states,  which  will  be  treated 
more  definitely  under  the  head  of  treaties.  An  evident  in- 
stance of  this  kind  would  be  when  a  state  has  been  a  grantor 
of  the  neutrality  of  a  certain  country  but  loses  such  amount  of 
territory  as  to  affect  vitally  its  resources  and  hence  to  be 
unable  to  fulfil  such  obligations. 

»  Weetlake,  "Int.  Law,"  vol.  I,  p.  58. 


90  STATES  IN  INTERNATIONAL  LAW 

56.  De  Facto  Governments. — Reference  has  been  made  in 
the  previous  paragraphs  to  a.  de  facto  government.  A  de  facto 
government  may  be  defined  as  a  political  organization,  arising 
during  a  civil  war  or  rebellion,  which  has  established  itself  by 
hostilities  or  otherwise  to  such  an  extent  that  it  can  exercise 
sovereign  powers  and  be  entitled  to  all  of  the  rights  of  war  and 
commercial  intercourse. 

De  facto  governments  vary  in  condition,  according  to  the 
circumstances  of  the  case  and  the  strength  of  their  position. 
They  may  be  in  a  condition  of  insurgency  or  belligerency. 
These  governments  have  been  discussed  in  previous  paragraphs. 
The  de  facto  government  now  under  consideration  is  one  which 
approaches  very  closely  the  status  of  a  permanently  estab- 
lished and  recognized  government.  It  is  located  in  the  usual 
capital  city,  has  control  of  the  various  departments  of  the 
government,  and  is  transacting  the  business  of  the  state  in  the 
buildings  devoted  to  those  departments  to  such  an  extent  that 
it  may  be  considered  as  replacing  the  former  government  of 
the  state,  or,  at  least,  in  a  major  part  of  its  territory,  and  thus 
representing  the  sovereignty  of  the  country. 

"The  distinguishing  characteristics  of  such  a  government 
are  that  adherents  to  it  in  war  against  the  government  de  jure 
do  not  incur  the  penalties  of  treason  and,  under  certain  limita- 
tions, obligations  assumed  by  it  in  behalf  of  the  country  or 
otherwise  will  in  general  be  respected  by  the  government  de 
jure  when  restored."^ 

In  addition  to  the  general  de  facto  government  of  the  state, 
there  may  be  local  de  facto  governments  maintained  by  active 
military  power  within  certain  limited  territory,  operating 
against  the  established  government  in  the  capital  of  the  coun- 
try. As  a  government  of  dominating  force  it  must  from 
necessity  be  obeyed  by  private  citizens  and  domiciled  aliens 
of  the  locality.  The  government  referred  to  is  akin  to  that 
of  a  military  occupation. 

1  Moore's  "Digest,"  I,  p.  41. 


FORMATION,  RECOGNITION,  AND  CONTINUITY        91 

The  recognition  oi  a  de  facto  government  in  a  foreign  state  is 
a  matter,  with  the  United  States,  placed  in  the  hands  of  the 
executive  department  and  is  not  considered  a  question  of  fact 
alone,  as  it  may  involve  a  serious  question  of  state  policy. 
The  government  of  Maximilian  in  Mexico,  for  instance,  in- 
volved in  its  recognition  the  question  of  a  violation  of  the 
Monroe  Doctrine.  Although  for  a  time  practically  the  de 
facto  government  of  Mexico,  it  was  never  recognized  by  the 
United  States,  though  its  administration  lasted  several  years. 
Maximilian  was  considered  as  the  creature  of  the  French  inter- 
vention and  its  continuance  would  probably  have  led  eventually 
to  military  operations  on  the  part  of  the  United  States  and  a 
restoration  of  Juarez  to  the  capital  city. 

In  the  case  of  the  Maximilian  government,  as  in  the  case  of 
the  Confederate  Government,  no  succession  of  the  obligations 
of  these  governments  was  assumed  or  recognized  by  the  re- 
public of  Mexico  or  the  government  of  the  United  States. 

57.  Extinction  of  States. — A  state  as  a  sovereign  state  may 
become  extinct  by  conquest,  by  forcible  division,  or  by  volun- 
tary arrangement.  The  recognition  of  such  an  extinction  is 
the  recognition  of  an  accomplished  fact  after  sufficient  delay 
for  the  assurance  of  its  reality  and  permanency.  States  tha^ 
lose  their  identity  and  sovereignty  lose,  of  course,  their  inter- 
national personality,  and  their  subjects  acquire  the  rights  and 
obligation  of  those  of  the  absorbing  state. 

An  example  of  forcible  annexation  and  state  extinction  is 
found  in  the  annexation  of  the  South  African  Republic  by  Great 
Britain,  and  an  example  of  separation  by  force,  accompanied 
by  extinction  of  a  nation,  is  that  of  Poland.  A  case  of  vol- 
untary extinction  as  a  sovereign  state  is  found  in  the  incor- 
poration of  Texas  into  the  Union  of  the  United  States  and  of 
peaceable  separation  is  that  of  the  dissolution  of  the  United 
Kingdom  of  Norway  and  Sweden  in  1905. 

In  case  of  total  extinction,  it  is  generally  agreed  that  the 
absorbing  state,  as  a  rule,  succeeds  to  the  rights  and  obligations 


92  STATES  IN  INTERNATIONAL  LAW 

of  the  absorbed  state.  It  is  incorporated  subject  to  all  of  its 
engagements  and  obligations  toward  other  states.  This  is 
especially  the  case  as  to  the  public  debt  of  the  absorbed  state, 
while  its  successor  inherits  in  turn  the  assets,  revenues,  and 
resources  of  the  extinguished  state,  subject  to  the  charges  rest- 
ing upon  them. 

Westlake  remarks,  in  this  connection,  that  "the  succession 
of  a  state  to  its  predecessor  is  qualified  by  the  circumstances 
that  it  is  the  public  law  and  policy  of  the  successor  which  are 
to  prevail  in  the  future,  as  being  inseparable  from  his  person, 
which  remains  his  own,  while  he  steps  into  the  other's  posi- 
tion." ^ 

TOPICS   AND   REFERENCES 

1.  The  Formation  of  States — 

Lawrence's  "Principles,"  etc.,  4th  ed.,  83-90.  Westlake's  "Inter- 
national Law,"  I,  44-49.  Holland's  "Jurisprudence,"  10th  ed., 
385. 

2.  The  Formation  of  a  State  by  Occupation  or  Colonization  in  a  Terri- 

tory Without  Civilized  Population — 

Hall,  6th  ed.,  88-91,  101-6.  Maine,  "International  Law,"  66-76. 
Hershey,  "Essentials,"  117. 

3.  Formation  of  a  State  by  the  Attainment,  after  Previous  Existence,  of 

Sufficiently  Full  Civilization  and  Standing — 

Westlake,  "International  Law,"  I,  45-47.  Lawrence's  "Prin- 
ciples," 4th  ed.,  84.     Hershey,  "Essentials,"  65,  117. 

4.  Formation  of  a  State  by  the  Division  of  a  State  into  Two  or  More 

Nationalities — 

Hershey,  "Essentials,"  117.  Phillimore,  vol.  II,  21,  28,  32.  Hal- 
leck,  Baker's  4th  ed.,  vol.  I,  97,  98. 

5.  The  Attainment  of  Independence  as  a  Nationality  from  the  Subjec- 

tion of  Another  State — 

Phillimore,  "International  Law,"  vol.  II,  28,  32;  Hall,  6th  ed., 
86-88.     Westlake,  "International  Law,"  46-47. 

»  Westlake's  "Int.  Law,"  I,  p.  82. 


FORMATION,  RECOGNITION,  AND  CONTINUITY        93 

6.  Formation  of  a  State  by  Combination  of  Minor  States  into  a  Union 

or  Confederation — 

Manning  (Amos),  "Law  of  Nations,"  94-95.  Oppenheim,  2d  ed., 
vol.  I,  113,    115,  123,  and  133-140.     Woolsey,  6th  ed.,  36-37. 

7.  The  Attainment  of  Independence  by  an  Insurgent  Political  Commu- 

nity— 
Stockton's  "Manual  for  Naval  Officers,"  25,  37.     Phillimore,  vol. 
II,  21  and  27.    Westlake's  "International  Law,"  I,  57,  58, 

8.  Insurgency — 

Moore's  "Digest,"  I,  par.  74.  Scott's  "Cases,"  743.  Wilson, 
"International  Law,"  par.  18. 

9.  The  State  of  Belligerency  and  Its  Recognition — 

Appendix  I.  Harcourt,  "Letters  of  Historicus,"  1-37;  Moore's 
"Digest,"  pars.  59-71.     Taylor,  pars.  145-7. 

10.  The  Recognition  of  a  New  State — 

Hershey,  "Essentials,"  123-6.  Oppenheim,  2d  ed.,  vol.  I,  pars. 
71-75.  Westlake,  vol.  I,  57-58.  Walker,  "Manual,"  par.  1. 
Moore's  "Digest,"  I,  chap.  Ill,  pars.  27-42. 

11.  Continuity  of  States — 

Hershey,  "Essentials,"  125-6.  Wheaton,  8th  ed.,  pars.  28-32. 
Twiss,  I,  pars.  18,  21. 

12.  De  Facto  Governments — 

See  Appendix  I.  Moore's  "Digest,"  I,  41.  Halleck,  I,  Baker's 
4th  ed.,  note  to  85.  Hall,  6th  ed.,  21  and  291.  Westlake,  "In- 
ternational Law,"  I,  59,  60. 

13.  Extinction  of  States — 

Westlake's  "International  Law,"  I,  63-69.  Halleck,  I,  Baker's 
4th  ed.,  95.    Lawrence's  "Principles,"  par.  49. 


CHAPTER  VI 

THE  SUCCESSION  OF  STATES.  FUNDAMENTAL  RIGHTS  AND 
DUTIES  OF  STATES.  INDEPENDENCE  AND  EQUALITY 
OF  STATES.  SELF-PRESERVATION.  RESPECT  FOR  THE 
DIGNITY  AND  HONOR  OF  THE  STATE 

58.  The  Succession  of  States  and  Sovereignty. — The  matter 
of  the  extinction  of  states  has  been  dealt  with  in  the  previous 
chapter.  The  subject  of  the  succession  of  a  state  to  one  ex- 
.  tinguished  or  the  succession  of  an  absorbing  state  to  an  acquisi- 
tion of  territory  remains  to  be  discussed.  It  is  a  matter  dif- 
ficult to  establish  by  the  general  rules  laid  down  by  writers  upon 
international  law,  as  the  exceptions  seem  to  be  equal  in  number 
to  the  compliances  with  the  rules. 

A  very  good  enunciation  of  the  general  doctrine  is  shown 
in  a  discussion  by  Westlake  and  his  translation  of  the  state- 
ment made  by  Huber  in  his  "Staaten-Succession,"  compris- 
ing probably  the  best  that  has  been  written  upon  the  subject. 
It  reads  as  follows: 

"The  notion  of  succession  is  a  general  one  in  law  and  be- 
longs exclusively  neither  to  private  nor  to  public  law.  Suc- 
cession is  substitution  plus  continuation.  The  successor  steps 
into  the  place  of  the  predecessor  and  continues  his  rights  and 
obligations;  so  far  the  successions  of  private  and  public  law 
agree.  But  we  now  have  to  distinguish  between  those  kinds 
of  succession.  A  civil  successor  who  steps  into  the  place  of 
his  predecessor  steps  into  his  rights  and  obligations  as  though 
he  were  himself  the  predecessor.  That  is  the  universal  suc- 
cession of  private  law  in  the  Roman  sense,  at  least  according 
to  the  prevailing  doctrine.  But  the  successor  of  international 
law  steps  into  the  rights  and  obligations  of  his  predecessor  as 

94 


THE  SUCCESSION  OF  STATES  95 

though  they  were  his  own.  .  .  .  State  succession  is  substitu- 
tion plus  continuation  quoad  jura  not  quoad  defunctum."^ 

In  the  syllabus  of  Attorney-General  Griggs  as  to  public  and 
private  laws  in  the  case  of  succession  of  sovereignty  in  acquired 
territory,  he  quotes  as  follows:  "  Those  laws  of  the  former  gov- 
ernment which  have  for  their  object  a  certain  governmental 
public  policy,  of  which  character  are  the  laws  for  the  disposi- 
tion of  the  public  domain  and  the  granting  of  quasi-public 
franchises,  rights,  and  privileges  to  private  individuals  or 
corporations,  ceased  to  have  any  force  or  effect  after  the  sov- 
ereignty of  the  former  government  ceased."^ 

Afterward  he  says:  "On  the  cession  of  territory  by  one 
nation  to  another,  those  internal  laws  and  regulations  of  the 
former  designated  as  municipal  continue  in  force  and  opera- 
tion until  the  new  sovereign  imposes  different  laws  and  regula- 
tions." 

"The  laws  which  are  political  in  their  nature  and  pertain 
to  the  prerogatives  of  the  former  government  immediately 
cease  upon  the  transfer  of  sovereignty."^ 

As  to  the  inhabitants  of  an  extinct  state  there  seems  to  be 
general  agreement  that  those  who  continue  to  reside  in  the 
conquered  or  acquired  state  or  return  there  permanently  be- 
come the  subjects  of  the  absorbing  state.  The  state  acquiring 
territory,  no  matter  how  done,  holds  it  subject  to  its  own 
constitution  and  laws  and  not  according  to  those  of  the  late 
government,  and  the  inhabitants  remaining  there  accept  its 
rule  and  protection.  Emigration  is  not  forbidden  and  they  do 
not  necessarily  participate  in  political  power.  This  is  the  case 
with  the  acquisition  of  territory  by  the  United  States  until  the 
territory  is  admitted  by  its  will  as  a  State  of  the  Union.  Before 
that  political  citizenship  is  given  or  withheld  by  the  action  of 
Congress,  if  no  treaty  has  been  made  to  the  contrary,  they  may 
be  held  as  nationals  but  not  as  citizens. 

»  Westlake,  I,  p.  69.  ^  Harcourt  v.  Gailliard,  12  Wheat.  523. 

» Moore's  "Digeat,"  I,  pp.  304,  310,  311. 


9G  STATES  IN  INTERNATIONAL  LAW 

With  respect  to  property,  especially  public  property  and 
obligations,  the  instructions  of  Mr.  Adams  as  secretary  of 
state  to  Mr.  Everett  on  the  10th  of  August,  1818,  in  the  main 
hold  good  at  the  present  time,  the  absorbing  state  having  the 
right  to  scrutinize  the  obligations  and  their  validity.  Mr. 
Adams  said:  "The  conqueror  who  reduces  a  nation  to  his 
subjection  receives  it  subject  to  all  its  engagements  and  duties 
toward  others,  the  fulfilment  of  which  then  becomes  his  own 
duty."^  There  is  no  doubt  as  to  the  assumption  of  all  the 
assets  of  the  vanquished  community.  As  to  the  debts  as 
mentioned  previously,  a  scrutiny  of  their  origin  is  not  unusual. 
It  is  hardly  to  be  supposed  that  debts  made  for  revolutionary 
purposes  or  to  obtain  the  means  of  carrying  on  a  war  against 
the  conquering  state  would  be  honored.  When  Cuba  was 
freed  from  Spain,  the  United  States  for  herself  and  for  Cuba 
refused  to  consider  as  a  proper  debt  the  loans  which  Spain  had 
charged  to  Cuba  for  the  cost  of  suppressing  the  insurrections 
of  Cuba  against  Spain. 

Westlake  concludes  also  "that  if  the  territory  changing 
masters  is  merged  for  revenue  purposes  in  that  of  the  annexing 
state  the  liability  of  the  latter  will  be  unlimited,  but  that,  if 
it  is  maintained  as  a  separate  fiscal  unit,  the  obligations  of  the 
extinguished  state,  or  those  of  the  ceding  state  connected  with 
the  territory,  will  not  pass  over  beyond  the  value  of  the  assets 
received,  including  such  taxation  of  the  territory  as  it  can 
reasonably  bear  without  reference  to  the  political  convenience 
of  the  annexing  state."^ 

The  effect  of  a  change  of  sovereignty  in  acquired  territory 
upon  the  treaty  relations  existing  and,  further,  as  to  a  choice 
of  nationality  during  military  occupation  will  be  discussed 
under  the  appropriate  headings. 

As  to  private  laws,  it  is  well  established  that,  in  cases  of  ces- 
sion or  conquest  in  civilized  countries  with  laws  of  property, 
these   laws,    usages,   and   regulations   remain    in    force    until 

1  Moore's  "Digest,"  I,  p.  96.  '  Westlake,  "Int.  Law,"  I,  p.  77. 


THE  SUCCESSION  OF  STATES  97 

changed  by  the  state  succeeding  to  the  acquired  territory. 
The  decisions  of  Chief  Justice  Marshall  in  our  country,  as  well 
as  those  of  Lord  Mansfield  and  Ellenborough  in  England,  agree 
that  the  laws  of  a  conquered  country  continue  until  they  are 
altered  by  the  conqueror. 

As  to  private  rights,  I  can  quote  no  better  authority  than 
that  of  Chief  Justice  Marshall  when  he  says:  "It  is  very  un- 
usual, even  in  cases  of  conquest,  for  the  conqueror  to  do  more 
than  displace  the  sovereign  and  assume  dominion  over  the 
country.  The  modern  usage  of  nations,  which  has  become 
law,  would  be  violated,  that  sense  of  justice  and  of  right  which 
is  acknowledged  and  felt  by  the  whole  civilized  world  would  be 
outraged,  if  private  property  should  be  generally  confiscated 
and  private  rights  annulled.  The  people  change  their  alle- 
giance; their  relation  to  each  other  and  their  rights  of  property 
remain  undisturbed."^  ' 

The  same  general  principles  apply  not  only  to  territory 
acquired  by  conquest  or  cession  but  to  the  territory  of  a  coun- 
try which  has  acquired  independence  by  successful  revolution 
or  lost  temporary  independence  by  unsuccessful  rebellion. 

59.    Fundamental  Rights  and  Duties  of  Sovereign  States. — 

There  are  certain  rights  and  duties  of  a  fundamental  nature 

inherent  to  sovereign  states.     They  can  be  classified  as  follows: 

-'I.  The   right   of   independence   and   legal   equality   among 

other  states. 

2.  The  right  of  self-preservation. 

3.  The  right  of  respect  for  the  dignity  and  honor  of  the 
state. 

4.  The  right  of  exclusive  jurisdiction  over  its  own  territory. 

5.  The  right  to  hold  and  acquire  property. 

These  rights,  to  a  less  degree,  exist  in  and  toward  states  not 
fully  sovereign. 

The  duties  of  a  state  corresponding  to  these  rights  require 
a  proper  observance  of  them  in  international  relations,  accom- 

>  Moore's  "Digest,"  I,  p.  41G. 


98  STATES  IN  INTERNATIONAL  LAW 

panied  by  the  recognition  of  the  obHgations  of  good  faith,  a 
redress  for  wrongs,  and  good-will,  comity,  and  courtesy  in  their 
intercourse. 

These  may  be  termed  the  rights  and  obligations  existing  in 
the  normal  times  of  peace.  In  time  of  war  other  rights  and 
obligations  arise  peculiar  to  that  state  of  affairs,  embracing 
the  status  of  belligerents  and  of  neutrals.  Although  these  are 
strictly  within  the  domain  of  international  law,  they  may,  I 
hope,  be  now  considered  as  abnormal  rights  and  duties  as  peace 
becomes  more  and  more,  fortunately  for  the  world,  the  normal 
condition  of  mankind  and  among  nations. 

60.  The  Right  of  Independence  and  Legal  Equality. — The 
right  of  independence  carries  with  it  naturally,  if  full  and  com- 
plete, the  right  of  legal  equality  with  other  sovereign  states. 
By  independence  is  meant  that  condition,  essential  to  a  sover- 
eign state,  by  which  it  controls  its  own  affairs,  external  as  well 
as  internal,  without  interference  from  other  states.  This  in- 
cludes, as  has  been  previously  mentioned,  the  right  to  organize 
itself  as  it  chooses  and  do  within  its  boundaries  whatever  it 
may  think  wise  to  develop  its  existence,  its  strength,  and  its 
prosperity.  It  must  be  recognized,  however,  that  there  are 
times,  even  with  sovereign  states,  when  restrictions  are  im- 
posed upon  them  by  events  and  circumstances.  These  re- 
strictions, however,  are  in  the  main  temporary  and  are  not 
permanently  legal  conditions  of  their  life.  The  same  can  be 
said  also  of  individuals  who  voluntarily  or  involuntarily  accept 
certain  restrictions  for  the  common  good.  An  example  in  this 
connection  is  that  of  two  powerful  nations.  Great  Britain  and 
the  United  States  of  America,  who  were  bound  for  many  years 
by  the  Clayton-Bulwer  treaty  not  to  acquire  territory  in 
Central  America.  Other  nations  have  entered  into  obligations 
by  which  they  have  restricted  their  spheres  of  influence  and 
colonization  in  Asia,  Africa,  and  the  Pacific  Ocean.  A  dec- 
laration was  made  as  late  as  1908  by  which  the  states  border- 
ing upon  the  Baltic  and  North  Seas  pledged  themselves  to  re- 


THE  SUCCESSION  OF  STATES  99 

frain  from  disturbing  the  existing  boundaries  within  a  certain 
sphere  named  therein.^ 

There  are  occasions  also  where  states  are  obliged  to  submit 
to  certain  restrictions  due  to  pecuHar  conditions  that  are  im- 
posed by  the  victor  at  the  end  of  a  successful  war,  or  sometimes 
without  the  actual  use  of  force  by  a  single  great  power,  or  by 
a  combination  of  powers  for  what  is  considered  the  general 
good  of  all  concerned.  Pertinent  cases  of  this  kind  can  be 
found  in  the  history  of  the  Napoleonic  wars  when  Prussia  was 
restricted  to  a  standing  army  of  40,000  men;  another  later  case 
is  that  of  Russia,  which  was  forbidden  to  create  military  and 
naval  arsenals  or  a  fleet  in  the  Black  Sea.  Both  of  these  re- 
strictions are  now  removed,  and  it  is  not  uninteresting  to  note 
that  both  were  evaded  before  their  formal  removal. 

In  a  more  constant  manner  there  has  been  and  still  exists 
a  predominance  assumed  by  the  great  powers  of  Europe  over 
the  affairs  of  that  continent  looking  to  the  settlement  of  matters 
which  might  lead  to  war.  This  is  generally  known  as  the 
concert  of  European  powers  and  has  been  of  service  to  mankind 
by  the  prevention  of  actual  warfare  and  by  the  settlement  of 
vexed  questions.  The  success  of  this  combination  of  the 
great  powers  with  the  powers  concerned  in  the  late  Balkan 
wars  seems  to  have  been  less  marked  than  in  other  times. 

The  attitude  of  the  United  States  toward  certain  powers  in 
the  West  Indies  and  Central  America  has  had  a  certain  sim- 
ilarity. An  occasional  yielding  on  the  part  of  these  states  and 
of  the  European  nationalities  concerning  them  does  not  de- 
prive them  of  their  rights  of  legal  independence  and  equality 
under  international  law.  This  exercise  of  authorities  in  both 
cases  falls  short  of  what  is  known  as  armed  or  threatened 
intervention,  which  is  a  display  or  threat  of  force  upon  an 
unwilling  state.  This  subject  of  intervention  will  now  be 
taken  up  as  a  topic  bearing  directly  upon  both  the  indepen- 
dence and  equality  of  states. 

» Supplement  to  A.  J.  I.  L.,  vol.  I,  p.  425,  and  vol.  II,  p.  270. 


100  STATES  IN  INTERNATIONAL  LAW 

6i.  Intervention. — The  two  elements  that  enter  into  inter- 
vention are  the  exhibition  of  actual  force,  naked  or  veiled,  on 
the  part  of  the  intervening  country  and  the  want  of  consent 
on  the  part  of  the  other  country  affected.  The  only  circum- 
stance under  which  intervention  can  be  considered  a  legal 
right  or  obligation  is  when  it  is  exercised  in  accordance  with  a 
guarantee  under  a  treaty  or  other  mutual  agreement;  this 
exercise  of  a  treaty  right  may  be,  of  course,  with  or  without 
the  momentary  consent  or  willingness  of  the  other  party  to 
the  treaty. 

There  are  other  cases  where  there  is  moral  justification  for 
intervention  by  one  or  more  nations.  These  are  cases  of 
intervention  upon  the  ground  of  humanity;  they  cannot  be 
called  legally  right,  but  they  may  be  morally  justifiable  and 
even  commendable.  They  come  under  what  "Historicus" 
calls  "  a  high  act  of  policy  above  and  beyond  the  domain  of 
law."^  A  case  in  point  was  the  intervention  of  the  great 
powers  of  Europe  in  regard  to  the  persecution  and  murder  of 
Christians  in  Asia  Minor  in  1860. 

Interventions  in  order  to  preserve  the  balance  of  power  in 
Europe  were  until  recent  times  considered  admissible  and  at 
times  just.  It  can  no  longer  be  considered  as  justifiable — and 
in  Europe,  at  least,  is  not  practised — and,  as  Westlake  remarks, 
"the  natural  growth  of  a  nation  in  power,  and  even  the  menace 
of  its  armaments  in  a  fair  proportion  to  its  population  and 
wealth  and  to  the  interests  which  it  has  to  defend,  must  be 
looked  on  without  jealousy  and  without  any  attempt  to  check 
it  by  those  nations  which  by  an  inferiority  of  character  or 
situation  are  destined  to  a  decline  in  relative  power."  ^ 

The  growth  by  increase  of  territory  is  not  quite  the  same 
question.  It  is  a  matter  of  legitimate  interest  to  all  of  the 
states  of  Europe  in  their  present  crowded  condition.  The 
system,  or  concert,  of  European  nations,  certainly,  in  regard  to 

^  Historicus,  "Letters  on  Some  Questions  of  Int.  Law." 
'Westlake's  "Int.  Law,"  I,  pp.  303,  304. 


THE  SUCCESSION  OF  STATES  101 

southeastern  Europe,  considers  the  matter  within  their  scope, 
though  events  prove  not  always  within  their  authority  to  regu- 
late. As  to  its  fading  authority,  Lawrence  says  that  in 
the  past  "it  distributed  provinces  and  rounded  off  the  bound- 
aries of  kingdoms  without  regard  to  the  wishes  of  the  pop- 
ulations and  their  affinities  of  race,  religion,  and  sentiment. 
It  repressed  popular  movements  when  they  interfered  with  its 
calculations.  Italian  unity  and  German  unity  were  achieved 
in  spite  of  it;  and  it  is  bound  to  lose  influence  as  the  wishes  of 
peoples  become  more  and  more  a  necessary  element  in  the  cal- 
culations of  rulers."^ 

The  question  of  intervention  can  then  be  called  a  matter  of 
state  policy  rather  than  one  of  international  law,  except  that,  as 
a  general  rule,  when  practised  it  is  a  violation  of  the  right  of 
independence  so  far  as  this  is  an  inherent  right  of  a  sovereign 
state. 

It  may  be  of  interest  to  briefly  recount  recent  events  in  our 
own  history  which  properly  come  under  the  head  of  interven- 
tion. 

The  first,  chronologically,  was  the  effort  upon  the  part  of  the 
United  States  to  prevent  the  continuance  of  the  interference 
by  France  with  the  political  independence  of  Mexico.  France 
by  force  of  arms  established  the  Archduke  Maximilian  of 
Austria  as  Emperor  of  Mexico  during  our  Civil  War,  when  the 
attention  of  the  country  was  engaged  in  the  struggle  for  the 
preservation  of  the  Union.  In  1865,  when  the  Civil  War  was 
over,  our  government  informed  the  French  Government  that 
their  treatment  of  Mexico  was  regarded  as  injurious  and  men- 
acing to  republican  institutions,  and  an  American  army  was 
massed  on  the  Rio  Grande  under  General  Sheridan.  As  a 
result.  Napoleon  III  withdrew  his  forces  from  Mexico  and  the 
empire  of  Maximilian  came  to  an  end. 

In  1898  the  President  of  the  United  States  in  a  special  mes- 
sage declared  that  the  intervention  of  the  United  States  in  the 
*  Lawrence's  "Principles,"  4th  ed.,  p.  132. 


102  STATES  IN  INTERNATIONAL  LAW 

affairs  of  Cuba,  then  in  insurrection  against  Spain,  would  be 
justified  on  the  grounds  of  humanity  and  of  protection  to  our 
citizens  and  to  our  commerce  as  well  as  removing  a  constant 
menace  to  our  peace.  As  a  result,  action  by  Congress  fol- 
lowed which  brought  on  the  war  with  Spain. 

In  June,  1900,  on  account  of  the  Boxer  movement,  unprec- 
edented disturbances  arose  in  China  directed  largely  against 
all  foreign  life  and  property.  These  disturbances  grew  until 
all  of  the  foreign  legations  at  Peking  were  besieged  and  at- 
tacked by  forces  acting  under  orders  from  the  imperial  oflBcials. 
Foreigners  elsewhere,  especially  missionaries,  were  tortured 
and  murdered  and  other  outrages  were  committed.  An  inter- 
national expedition  which  included  an  American  detachment 
was  formed  and  raised  the  siege  of  the  legations  and  took  pos- 
session of  Peking  after  overcoming  the  resistance  of  the  Chi- 
nese troops,  the  imperial  household  having  fled. 

This  joint  intervention  was  explained  by  Secretary  Hay  as 
being  necessary  to  open  communication  with  Peking  to  rescue 
our  oflBcials  and  with  the  purpose  of  affording  all  possible  pro- 
tection everywhere  in  China  to  American  life  and  property 
and  to  guard  all  legitimate  American  interests. 

In  November,  1903,  the  United  States  intervened  to  prevent 
the  suppression  by  Colombia  of  the  local  revolution  of  Panama 
by  preventing  the  landing  of  Colombian  forces  on  the  Isthmus 
and  the  consequent  bombardment  of  the  town  of  Panama. 
Justification  for  this  intervention  was  claimed  to  be  found  in 
our  treaty  rights,  our  national  interests  and  safety,  and  in  the 
interests  of  collective  civilization. 

In  1906  the  United  States  intervened  in  Cuba,  in  accor- 
dance with  our  treaty  rights  and  guarantees,  on  account  of  the 
disorders  arising  upon  the  island  before  and  after  the  resigna- 
tion of  President  Palma.  After  the  establishment  of  peace  and 
good  government  in  1909  the  United  States  evacuated  the 
island  and  self-government  was  resumed. 

In  closing  this  subject  it  may  be  well  to  repeat  what  many 


THE  SUCCESSION  OF  STATES  103 

writers  upon  the  subject  have  said:  that  any  nation  feeling  it 
desirable  or  necessary  to  interfere  with  or  intervene  in  the 
affairs  of  another  state  must  do  so  with  a  military  and  naval 
force  sufficiently  strong  to  make  it  clearly  understood  to  the 
family  of  nations,  as  well  as  to  the  state  concernedj  that  its 
voice  must  be  attended  to  and  its  requests  heeded. 

There  may  be  a  previous  stage  of  diplomatic  intercourse  con- 
sisting of  advice  and  reproof  alone;  in  this  case  it  is  important 
to  consider  the  weighty  words  of  Westlake,  one  of  the  most 
learned  as  well  as  one  of  the  most  able  writers  upon  the  sub- 
ject. He  says:  "It  only  remains  to  observe  that  the  tender 
of  advice  to  a  foreign  government,  even  about  the  inter- 
nal affairs  of  its  state,  is  not  intervention,  and  violates  no 
right,  though  it  is  generally  injudicious.  Statesmen  must 
remember  that  though  governments  and  states  are  different, 
and  it  is  to  states  that  the  rights  given  by  international  law 
belong,  yet  it  is  governments  that  they  have  to  live  with  and 
whose  susceptibilities  they  will,  therefore,  find  it  needful  to 
consult."^ 

Still  another  word  can  be  said  as  to  the  legal  equality,  so 
closely  linked  to  the  independence,  of  states  before  closing 
this  discussion.  "Russia  and  Geneva  have  equal  rights,"  said 
Chief  Justice  Marshall  in  1825.  But  it  is  hard  to  realize  that 
Salvador  and  the  United  States  are  even  legally  upon  an  equal- 
ity. In  fact,  it  must  be  recognized  as  a  material  fact  that 
states,  like  individuals,  exercise  power  in  proportion  to  their 
influence,  strength,  and  riches.^ 

62.  The  Right  of  Self -Preservation. — A  sovereign  state 
having  attained  a  recognition  of  its  existence  and  independence 
with  the  concomitant  of  legal  equality  has  naturally  the  right 
of  preserving  that  existence;  in  other  words,  there  is  an  under- 
lying principle  or  right  of  self-preservation. 

As  a  matter  of  fact,  it  is  rarely  that  the  preservation  of  the 

» Westlake's  "Int.  Law,"  I,  pp.  307,  308. 
»  Moore'8  "  Digest,"  I,  p.  63. 


104  STATES  IN  INTERNATIONAL  LAW 

existence  of  a  state  demands  the  use  of  this  right,  which,  as 
Hall  says,  suspends  in  general  "the  obligation  to  act  in  obe- 
dience to  other  principles."  .  .  .  "There  are,  however,"  he  goes 
on  to  say,  "circumstances  falling  short  of  occasions  upon  which 
existence  is  immediately  in  question,  in  which,  through  a  sort 
of  extension  of  the  idea  of  self-preservation  to  include  self-pro- 
tection against  serious  hurt,  states  are  allowed  to  disregard 
certain  of  the  ordinary  rules  of  law  in  the  same  manner  as  if 
their  existence  were  involved.  This  class  of  cases  is  not  only 
susceptible  of  being  brought  under  distinct  rules,  but  evidently 
requires  to  be  carefully  defined,  lest  an  undue  range  should  be 
given  to  it."^ 

An  instance  which  is  generally  quoted  as  a  striking  example 
of  the  use  of  this  right  of  self-preservation  occurred  at  the  time 
of  the  Canadian  rebellion  of  1838. 

"A  body  of  insurgents  collected  to  the  number  of  several 
hundreds  in  American  territory  and,  after  obtaining  small 
arms  and  twelve  guns  by  force  from  American  arsenals,  seized 
an  island  at  Niagara  within  the  American  frontier,  from  which 
shots  were  fired  into  Canada  and  where  preparations  were 
made  to  cross  into  British  territory  by  means  of  a  steamer 
called  the  Caroline.  To  prevent  the  crossing  from  being  ef- 
fected, the  Caroline  was  boarded  by  an  English  force  while  at  her 
moorings,  within  American  waters,  and  was  sent  adrift  down 
the  falls  of  Niagara.  The  cabinet  of  Washington  complained 
of  the  violation  of  territory  and  called  upon  the  British  Gov- 
ernment 'to  show  a  necessity  of  self-defence,  instant,  over- 
whelming, leaving  no  choice  of  means  and  no  moment  for 
deliberation.  It  will  be  for  it  to  show  also  that  the  local  au- 
thorities of  Canada,  even  supposing  the  necessity  of  the  mo- 
ment authorized  them  to  enter  the  territories  of  the  United 
States  at  all,  did  nothing  unreasonable  or  excessive,  since  the 
act,  justified  by  the  necessity  of  self-defence,  must  be  limited 
by  that  necessity  and  kept  clearly  within  it.'    There  was  no 

1  H^U,  6th  ed.,  p.  264. 


THE  SUCCESSION  OF  STATES  105 

difBculty  in  satisfying  the  requirements  of  the  United  States, 
which  though,  perhaps,  expressed  in  somewhat  too  emphatic 
language,  were  perfectly  proper  in  essence.  There  was  no 
choice  of  means,  because  there  was  no  time  for  application  to 
the  American  Government;  it  had  already  shown  itself  power- 
less, and  a  regiment  of  militia  was  actually  looking  on  at  the 
moment  without  attempting  to  check  the  measures  of  the 
insurgents.  Invasion  was  imminent;  there  was,  therefore,  no 
time  for  deliberation.  Finally,  the  action  which  was  taken  was 
confined  to  the  minimum  of  violence  necessary  to  deprive  the 
invaders  of  their  means  of  access  to  British  territory.  After 
an  exchange  of  notes  the  matter  was  dropped  by  the  govern- 
ment of  the  United  States."^ 

Cases  have  occurred  under  the  right  of  self-preservation 
which  have  been  quoted  also  as  matters  of  intervention.  These 
are  against  states  which  are  not  for  the  time  free  agents  and 
whose  actions  or  resources  may  be  commanded  or  are  used 
against  the  state  whose  safety  is  threatened  in  a  more  or  less 
degree.  This  action  is  not  against  persons  of  the  state  or  on 
their  territory,  but  against  the  state  itself  by  invasion  or  by 
an  attack  upon  its  military  resources  or  armed  forces. 

A  case  of  this  kind,  which  has  been  the  source  of  much  dis- 
cussion and  animadversion,  is  that  of  the  capture  of  the  Danish 
fleet  at  Copenhagen  by  Lord  Nelson,  in  1807,  during  the  Na- 
poleonic wars.  The  following  description  is  given  by  Hall, 
an  English  author:  "At  that  time  the  Danes  were  in  possession 
of  a  considerable  fleet  and  of  vast  quantities  of  material  of 
naval  construction  and  equipment;  they  had  no  army  capable 
of  sustaining  an  attack  from  the  French  forces  then  massed  in 
the  north  of  Germany;  it  was  provided  by  secret  articles  in  the 
treaty  of  Tilsit,  of  which  the  British  Government  was  cognizant, 
that  France  should  be  at  liberty  to  take  possession  of  the 
Danish  fleet  and  to  use  it  against  England;  if  possession  had 
been  taken,  France  'would  have  been  placed  in  a  commanding 
»  HaU,  "Int.  Law,"  6th  ed.,  pp.  265,  266. 


106  STATES  IN  INTERNATIONAL  LAW 

position  for  the  attack  of  the  vulnerable  parts  of  Ireland  and 
for  a  descent  upon  the  coasts  of  England  and  Scotland';  in 
opposition,  no  competent  defensive  force  could  have  been 
assigned  without  weakening  the  Mediterranean,  Atlantic,  and 
Indian  stations  to  a  degree  dangerous  to  the  national  posses- 
sions in  those  regions;  the  French  forces  were  within  easy 
striking  distance,  and  the  English  Government  had  every  rea- 
son to  expect  that  the  secret  articles  of  the  treaty  of  Tilsit 
would  be  acted  upon.  Orders  were,  in  fact,  issued  for  the  entry 
of  the  corps  of  Bernadotte  and  Davoust  into  Denmark  before 
Napoleon  became  aware  of  the  despatch,  or  even  of  the  intended 
despatch,  of  an  English  expedition.  In  these  circumstances 
the  British  Government  made  a  demand,  the  presentation  of 
which  was  supported  by  a  considerable  naval  and  military 
force,  that  the  Danish  fleet  should  be  delivered  into  the  custody 
of  England;  but  the  means  of  defence  against  French  invasion 
and  a  guarantee  of  the  whole  Danish  possessions  were  at  the 
same  time  offered,  and  it  was  explained  that  'we  ask  deposit — 
we  have  not  looked  for  capture;  so  far  from  it,  the  most  solemn 
pledge  has  been  offered  to  your  government,  and  it  is  hereby 
renewed,  that,  if  our  demand  be  acceded  to,  every  ship  of  the 
navy  of  Denmark  shall,  at  the  conclusion  of  a  general  peace, 
be  restored  to  her  in  the  same  condition  and  state  of  equipment 
as  when  received  under  the  protection  of  the  British  flag.*  The 
emergency  was  one  which  gave  good  reason  for  the  general  line 
of  conduct  of  the  English  Government.  The  specific  demands 
of  the  latter  were  also  kept  within  due  limits.  Unfortunately, 
Denmark,  in  the  exercise  of  an  indubitable  right,  chose  to  look 
upon  its  action  as  hostile  and  war  ensued,  the  occurrence  of 
which  is  a  proper  subject  for  extreme  regret  but  offers  no 
justification  for  the  harsh  judgments  which  have  been  fre- 
quently passed  upon  the  measures  which  led  to  it."^ 

This  matter  has  been,  as  just  said,  a  matter  of  controversy, 
but  at  least  one  French  historian  like  Lanfrey  and  an  Amer- 
ican writer  upon  the  subject  like  Admiral  Mahan  uphold  the 
»HaU,  "Int.  Law,"  pp.  268,  269. 


THE  SUCCESSION  OF  STATES  107 

conduct  of  England  in  the  matter  as  a  due  exercise  of  the  right 
of  self-preservation. 

The  case  of  the  Virginius  has  been  put  by  some  writers  under 
the  category  of  an  exercise  of  the  right  of  self-preservation. 
It  is  as  follows: 

"On  October  31,  1873,  the  steamer  Virginius,  flying  the 
American  flag  and  having  an  American  register,  was  captured 
by  the  Spanish  man-of-war  Tornado  on  the  high  seas.  The 
Virginius  was  taken  into  Santiago  de  Cuba,  where,  after  a  trial 
by  a  court  martial  upon  the  charge  of  piracy,  fifty-three  of 
those  on  board,  Americans,  British,  and  Cubans,  were  con- 
demned to  death  and  shot.  The  rest  were  held  as  prisoners. 
The  British  man-of-war  Niohe,  arriving  at  Santiago  on  Novem- 
ber 8,  demanded  that  no  further  executions  of  British  subjects 
should  take  place  until  after  further  investigation  by  higher 
authorities.  This  was  done.  The  charge  of  piracy  appears  to 
have  been  based  upon  the  fact  that  the  vessel  was  engaged  in 
the  service  of  Cuban  insurgents  in  conveying  arms,  ammuni- 
tion, and  men  to  aid  the  Cuban  insurrection. 

"  After  some  correspondence  by  telegraph  upon  the  matter, 
Secretary  Fish  and  the  Spanish  minister  agreed  upon  the  fol- 
lowing : 

"  Spain  stipulated  to  return  forthwith  the  Virginius  and  the 
survivors  of  her  passengers  and  crew,  and  on  December  25 
following  to  salute  the  flag  of  the  United  States  unless  before 
that  date  Spain  should  prove  to  the  satisfaction  of  the  United 
States  that  the  Virginius  was  not  entitled  to  carry  the  Amer- 
ican flag,  in  which  case  the  salute  was  not  to  be  required  but  a 
disclaimer  of  intent  of  indignity  to  the  flag  was  to  be  expected 
by  the  United  States.  If  on  or  before  December  25  it  was  made 
to  appear  to  the  satisfaction  of  the  United  States  that  the 
Virginius  did  not  rightfully  c&rry  the  American  flag,  the 
United  States  was  to  institute  legal  proceedings,  after  inquiry, 
against  the  Virginius  and  against  any  of  the  persons  who  may 
appear  guilty  of  illegal  acts. 


108  STATES  IN  INTERNATIONAL  LAW 

"  It  was  finally  found  that  the  Virginius  at  the  time  of  her 
capture  was  improperly  carrying  the  American  flag,  and  the 
salute  was  hence  dispensed  with.  The  Virginius  was  delivered 
over  to  the  United  States  navy  at  Bahia  Honda,  but  on  her 
passage  to  New  York  sunk  off  Cape  Fear  in  bad  weather,  being 
in  an  unseaworthy  condition.  The  prisoners  who  survived 
the  massacre  were  surrendered  at  Santiago  and  reached  New 
York  in  safety,  and  an  indemnity  of  $80,000  was  paid  for  the 
relief  of  the  families  of  persons  who  were  American  citizens. 

"  The  British  Government  demanded  and  obtained  com- 
pensation for  the  families  of  the  British  subjects  who  were 
executed.  Their  ground  of  complaint  against  the  Spanish 
officials  at  Santiago  was  that  after  the  capture  of  the  people 
of  the  Virginius  had  been  made  there  existed  no  emergency  of 
self-defence,  and  that  the  offenders  should  have  been  prosecuted 
in  proper  form  of  law  and  regular  proceedings  of  a  civil  nature 
should  have  been  instituted.  It  was  also  maintained  that 
had  this  been  done  it  would  have  been  found  that  'there  was 
no  charge  either  known  to  the  law  of  nations  or  to  any  inter- 
national law  under  which  persons  in  the  situation  of  the  British 
in  the  crew  of  the  Virginius  could  have  been  properly  con- 
demned to  death.' 

"  The  charge  of  piracy  against  those  executed  from  the 
Virginius  was  without  reason  and  their  execution  was  without 
justifiable  excuse.  The  Virginius  was  not  fitted  for  offence 
or  defence  as  a  ship  by  reason  of  her  equipment  and  also  offered 
no  resistance.  At  most,  she  was  engaged  in  an  illegal  expedi- 
tion and  could  have  been  seized  within  territorial  waters  of 
Spain  or  Cuba  for  that  reason.  It  does  not  seem,  however, 
that  such  a  seizure  would  have  been  justifiable  on  the  high 
seas,  as  the  emergency  for  self-defence  and  self-protection  was 
not  sufficiently  great  or  imminent.  The  result  of  landing  a 
motley  force  of  one  hundred  men  on  Cuban  soil  does  not  justify 
the  arrest  of  a  foreign  vessel  on  the  high  seas  in  times  of  peace. 
The  necessity  for  self-defence  should  be  'instant,  overwhelming, 


THE  SUCCESSION  OF  STATES  109 

and  leaving  no  choice  of  means  and  no  moment  for  delibera- 
tion.' So  far  as  the  question  of  the  rightfulness  of  the  Vir- 
ginim  to  carry  the  flag  was  concerned,  at  the  time  of  her  arrest, 
this  was  not  known.  She  was  arrested  as  an  American  vessel; 
it  was  discovered  at  a  later  date  only  that  she  had  no  such 
right."i 

63.  Respect  for  the  Dignity  and  Honor  of  the  State. — A 
jealous  regard  for  the  dignity  and  honor  of  a  state  increases 
with  the  cultivation  and  refinement  of  its  inhabitants  and  also 
with  the  increase  and  intimacy  of  its  intercourse  with  the  other 
civilized  and  enlightened  nations  of  the  world.  A  national 
insult  to  a  country  directly,  or  to  its  emblems,  is  not  only 
resented  by  the  officials  of  its  government  but  by  every  patriotic 
citizen  or  subject  at  home  or  abroad.  It  is  well  that  it  should 
be  so,  for  one  of  the  strongest  forces  that  compel  an  observance 
of  the  tenets  of  international  law  is  that  fear  of  censure  from 
its  fellows  and  of  bad  repute  in  the  family  of  nations  which  now 
results  from  a  deliberate  violation  of  the  law  and  comity  of 
states.  A  sensitiveness  as  to  honor  and  dignity  is  as  important 
for  the  state  as  it  is  for  the  individual.  As  Woolsey  says: 
"The  Fijis  or  the  Hottentots  care  little  how  the  world  re- 
gards them,  but  the  opinion  of  civilized  nations  is  highly 
valued  by  all  those  states  which  are  now  foremost  in  human 
affairs."^ 

It  has  been  already  stated  that  the  rights  of  states  carry  with 
them  corresponding  obligations  on  the  part  of  states  with  re- 
spect to  each  other.  It  becomes  then  a  matter  of  obligation 
properly  a  subject  for  the  municipal  law  of  each  state,  that  the 
citizens  or  subjects  of  each  state  shall  be  prevented  from  doing 
acts  that  would  violate  the  dignity  of  foreign  states,  and  pun- 
ishment should  be  awarded  to  those  who  have  transgressed  in 
such  matters.  There  must,  however,  be  discrimination  and 
care  exercised  in  such  matters  so  that  punishment  shall  be 

»  Stockton,  "Naval  Manual,"  pp.  92,  93,  94. 
•Woolsey,  "Int.  Law,"  6th  ed.,  p.  17. 


110  STATES  IN  INTERNATIONAL  LAW 

given  or  expected  only  when  the  dignity  of  a  state  is  really 
violated. 

"Mere  criticism,"  as  Oppenheim  says,  "of  policy,  histor- 
ical verdicts  concerning  the  attitude  of  states  and  their  rulers, 
utterances  of  moral  indignation  condemning  immoral  acts  of 
foreign  governments  and  their  monarchs  need  neither  be  sup- 
pressed nor  punished."^ 

The  delicacy  of  international  intercourse  should  require 
care  on  the  part  of  the  agents  of  one  state  in  discussing  matters 
and  policies  of  other  states,  and  documents  reflecting  upon  for- 
eign governments  should  always  be  preserved  from  undue  pub- 
licity. Besides  the  courtesy  extended  by  one  state  to  the  dip- 
lomatic agents  of  another,  there  are  certain  ceremonials  that 
are  in  vogue  between  the  armed  forces  of  the  states,  especially 
as  to  the  fortified  ports  and  as  to  foreign  vessels  of  war  enter- 
ing them  as  well  as  between  vessels  of  war  of  different  nations 
meeting  in  port  or  at  sea.  The  courtesy  extended  by  the  way 
of  salutes  of  flag,  etc.,  between  merchant  vessels  and  men-of- 
war  of  different  states  may  be  said  to  be  entirely  voluntary 
and  depend  entirely  upon  the  courtesy  of  the  merchantman  con- 
cerned. It  is  in  no  sense  obligatory.  It  no  longer  includes 
the  striking  of  sails,  the  lowering  of  topsails,  or  the  firing  of 
guns.  At  most,  it  consists  of  lowering,  or,  as  it  is  termed,  dip- 
ping, the  national  colors  a  short  distance  and  generally  three 
times.  This  is  answered  in  return  in  the  same  way  by  the 
man-of-war. 

As  between  men-of-war  the  arrangements  are  matters  of 
international  usages  and  regulation  and  consist  of  a  mutual 
display  of  colors,  a  salute  to  the  flag  of  the  port  or  ship  if  it 
can  be  returned,  salutes  to  officers  of  flag-rank,  salutes  to  other 
foreign  oflBcials  upon  their  visit  to  men-of-war,  the  parading 
of  a  guard,  and  the  playing  of  national  airs  by  the  band  of 
music  of  the  vessel,  etc' 

*  Oppenheim,  vol.  I,  p.  176. 

»  "United  States  Navy  Regulationa  of  1913,"  pp.  127R,  128R. 


THE  SUCCESSION  OF  STATES  111 

TOPICS   AND   REFERENCES 

1.  The  Succession  of  States  and  of  the  Sovereignty  in  Acquired  Terri- 

tory— 

Hall,  "International  Law,"  6th  ed.  (Atlay),  91-100.  Moore's  "Di- 
gest," I,  chap.  IV,  sees.  92-99,  etc.     Scott's  "Cases,"  85-116. 

2.  Fundamental  Rights  and  Duties  of  States — 

Hershey,  "Essentials,"  143.  Stockton,  "Manual,"  38.  Law- 
rence's "Principles,"  4th  ed.,  116,  117. 

3.  The  Right  of  Independence  and  Legal  Equality — 

Oppenheim,  2d  ed.,  vol.  I,  168-174.  Halleck,  vol.  I,  Baker's  4th 
ed.,  100-2.     Wheaton,  part  II,  chap.  I,  par.  12,  8th  ed.,  132. 

4.  Intervention — 

Walker,  "Manual,"  pars.  5-7.  Wilson,  "International  Law,"  sec. 
23.     Woolsey,  sec.  43. 

3.  The  Right  of  Self-Preservation— 

Hershey,  "Essentials,"  144,  145.  Westlake,  "International  Law," 
I,  296-300.     Westlake's  "Chapters,"  123-8. 

6.  The  Case  of  the  Caroline  on  the  Canadian  Frontier — 

Snow's  "Cases,"  177-8.  Moore's  "Digest,"  vols.  II  and  VII, 
pars.  217  and  300.     Westlake,  "International  Law,"  300,  etc. 

7.  The  Case  of  the  Capture  of  the  Danish  Fleet  by  Admiral  Nelson- 

Rose,  "Life  of  Napoleon,"  II,  129.  Mahan's  "Sea  Power  upon 
French  Revolution,"  vol.  II,  277.  Lanfrey's  "Napoleon,"  vol. 
XIV,  146-9. 

8.  The  Case  of  the  Virginius — 

Moore's  "Digest,"  vol.  II,  895,  967,  980.  Chadwick,  "Relations 
of  the  United  States  and  Spain,"  chaps.  XVI  and  XVII. — H. 
Taylor,  sees.  404,  etc. 

9.  The  Question  of  the  Obligation  of  a  State  with  Respect  to  the  Dig- 

nity and  Honor  of  Another  State — 

Hershey,  "Essentials,"  157,  158.  Oppenheim,  174-7.  Wheaton, 
sec.  160. 

10.  International  Ceremonials — 

Davis,  3d  ed.,  128-131.  Halleck,  I,  4th  ed.,  139-153.  "U.  S. 
Navy  Regulations,  1913,"  127,  128,  etc. 


CHAPTER  VII 
TERRITORIAL  JURISDICTION  OF  A  STATE 

64.  Exclusive  Jurisdiction  over  Its  Own  Territory. — This 
is  given  as  fourth  among  the  fundamental  rights  of  a  sovereign 
state.  It  is  an  exclusive  right  of  jurisdiction  of  a  state,  prac- 
tically speaking,  over  all  territory,  things,  and  persons  within 
its  boundaries.  It  includes  a  jurisdiction  over  its  citizens  or 
subjects,  of  a  certain  limited  nature,  who  are  travelling  or  lo- 
cated in  foreign  countries.  This  jurisdiction  of  the  state  is 
also  extended  to  include  upon  the  high  seas  all  of  the  private 
and  public  vessels  legally  carrying  its  flag.  The  extension  of 
its  rights  of  jurisdiction  in  time  of  war  on  the  high  seas  and  all 
conquered  territory  also  exists  and  will  be  treated  especially 
under  the  proper  heads.  There  are  some  exceptions  and  im- 
munities to  these  general  rules  which  also  will  be  discussed 
hereafter. 

Hall  defines  in  more  detail  the  territorial  property  of  a  state 
to  consist  "in  the  territory  occupied  by  the  state  community 
and  subjected  to  its  sovereignty,  and  it  comprises  the  whole 
area,  whether  of  land  or  water,  included  within  definite  bound- 
aries, ascertained  by  occupation,  prescription,  or  treaty,  to- 
gether with  such  inhabited  or  uninhabited  lands  as  are  con- 
sidered to  have  become  attendant  on  the  ascertained  territory 
through  occupation  or  accretion,  and  when  such  area  abuts 
upon  the  sea,  together  with  a  certain  margin  of  water." ^ 

The  question  of  the  jurisdiction  of  a  state  over  the  air  above 
it,  is  treated  in  a  separate  chapter  upon  aerial  warfare.  It 
may  be  considered  that  such  a  jurisdiction  exists  and  is  exer- 
cised. 

» Hall,  6th  ed.,  Atlay,  p.  101. 
112 


TERRITORIAL  JURISDICTION  OF  A  STATE  113 

65.  The  Right  to  Hold  and  Acquire  Property  is  the  fifth 
right  of  the  fundamental  rights  of  states.  This  is  necessarily 
an  inherent  right.  A  state,  like  a  private  corporation,  is  in 
law  also  a  legal  person  and,  in  its  corporate  capacity,  may  have 
absolute  ownership  of  property,  just  as  an  individual  in  the 
state  has  ownership  in  his  property.  Thus  arsenals,  public 
buildings,  public  lands,  etc.,  are  owned  by  the  state  in  the  same 
way  but  for  more  general  uses.  States  also  own,  in  some  cases, 
railways,  telegraphs,  telephones,  canals,  and  public  works. 

This  state-owned  property,  so  long  as  it  is  within  the  bound- 
aries of  the  state,  plays  no  particular  part  in  international 
law,  but  when  found  in  a  foreign  state  it  is  not  subject  to  the 
jurisdiction  of  the  owning  state,  excepting  that  kind  of  prop- 
erty which  enjoys  certain  immunity — generally  known  as  ex- 
territoriality. Residences  of  ambassadors  and  ships  of  war 
are  instances  of  this  kind.  As  a  matter  of  fact,  this  immunity 
has  been  extended  also  to  other  kinds  of  property  of  a  state, 
such  as  public  vessels  not  armed,  munitions  of  war,  etc.,  found 
within  foreign  territory. 

When  a  new  state  is  recognized  as  duly  formed  from  the 
parent  state,  the  fixed  public  property  of  the  latter  within  the 
new  boundaries  goes  to  the  new  state.  On  the  other  hand,  in 
the  case  of  an  unsuccessful  insurrection,  in  the  course  of  which 
the  property  of  the  state  was  seized,  the  parent  state  resumes 
possession  of  what  was  formerly  its  own  and  succeeds  to  what 
the  insurgents  have  created,  or  acquired,  for  their  public  uses 
during  the  insurrection. 

In  addition  to  the  state  ownership  of  property  for  public 
uses,  a  state  has  control  over  the  property  of  its  inhabitants  to 
the  extent  of  levying  taxes  to  be  paid  by  them  in  a  manner 
required  by  law.  Besides  this,  there  is  the  right  of  eminent 
domain,  which  is  a  natural  right  pertaining  to  the  state  resting 
upon  its  power,  in  case  of  necessity,  to  use  private  property 
for  public  purposes. 

Of  this  a  learned  writer  says:   "  The  term,  eminent  domain. 


114  STATES  IN  INTERNATIONAL  LAW 

properly  speaking,  is  not  applicable  to  the  property  of  the  state 
but  only  to  the  property  of  individuals,  for  the  right  of  the 
state  to  dispose  of  its  property  results  from  the  right  of  owner- 
ship, and  not  from  the  right  of  eminent  domain,  which  latter 
right  remains  in  the  state  after  it  has  transferred  the  owner- 
ship of  its  property.  It  is  a  right  which,  from  its  very  nature, 
is  inseparable  from  the  sovereignty  and  is  necessarily  trans- 
ferred with  the  sovereignty."^ 

A  state  may  acquire  property  by  any  of  the  recognized  ways 
by  which  individuals  acquire  private  property,  and  it  may 
dispose  of  property  under  the  same  absolute  right. 

"  Such  disposition,"  says  the  writer  above  quoted,  "  is  some- 
times a  question  of  peculiar  interest  to  foreign  states  who 
may  acquire  such  property  by  purchase,  exchange,  cession, 
conquest,  and  treaties  of  confirmation,  and  especially  where 
such  acquisitions  are  made  from  states  continually  subject  to 
revolutions  and  fluctuations  in  the  character  of  its  govern- 
ment and  in  the  powers  of  its  rulers.  The  act  of  a  government 
de  facto,  a  government  which  is  submitted  to  by  the  great 
body  of  the  people  and  recognized  by  other  states,  is  binding 
as  the  act  of  the  state;  and  it  is  not  necessary  for  others  to  ex- 
amine into  the  origin,  nature,  and  limits  of  that  authority.  If 
it  is  an  authority  de  facto,  and  suficient  for  the  purpose,  others 
will  not  inquire  how  that  authority  was  obtained. "^ 

Territory  may  be  acquired  by  occupation,  as  previously 
mentioned.  The  title  gained  by  such  occupation  arises  from 
the  discovery,  use,  and  settlement  of  territory  not  occupied 
by  any  civilized  power.  Discovery  alone  is  not  enough  to 
give  domain  and  the  attendant  jurisdiction  to  the  state  to 
which  the  discoveries  belong.  Such  discovery  must  be  followed 
by  possession  and  occupation  to  maintain  the  right  of  juris- 
diction against  the  rest  of  the  world. 

The  extent  of  possessions  gained  by  discovery  and  settle- 

» Halleck,  4th  ed.,  Baker,  I,  p.  163. 

•  Halleck,  4th  ed.,  Baker,  I,  pp.  164,  165. 


TERRITORIAL  JURISDICTION  OF  A  STATE  115 

ment  has  been  held  to  extend  from  the  seacoast  first  occupied 
into  the  unclaimed  interior,  or  back  country,  and  generally  to 
the  sources  of  the  rivers  emptying  within  that  coast-line,  as 
well  as  to  all  of  their  branches  and  the  country  they  cover 
(the  hinterland).  It  has  also  been  held  in  this  connection 
that  when  two  portions  of  a  seacoast  have  been  taken  posses- 
sion of  by  two  different  states  that  the  midway  distance  be- 
tween them  becomes  the  boundary  if  their  acquired  territory 
is  contiguous. 

By  a  declaration  adopted  at  the  Berlin  conference  of  1885, 
the  thirteen  powers  there  assembled  agreed  that  "any  power 
which  henceforth  takes  possession  of  a  tract  of  land  on  the 
coast  of  the  African  Continent,  outside  of  its  present  possessions, 
or  which,  being  hitherto  without  such  possessions,  shall  acquire 
them,  as  well  as  the  power  which  assumes  a  protectorate  there, 
shall  accompany  the  respective  act  w^th  a  notification  thereof, 
addressed  to  the  other  signatory  powers  of  the  present  act,  in 
order  to  enable  them,  if  need  be,  to  make  good  any  claims  of 
their  own."^ 

A  title  may  be  acquired  to  lands  or  islands  formed  by  accre- 
tion from  the  mainland,  and  it  was  so  decided  as  to  the  new 
islands  of  Louisiana,  formed  in  the  vicinity  of  the  delta  of  the 
Mississippi,  by  Sir  William  Scott,  in  the  case  of  the  Anna,  in 
1805.  Acquisition  by  cession  depends  upon  the  treaties  or 
agreements  by  which  it  is  made. 

Title  to  territory  of  the  state  can  be  acquired  by  prescrip- 
tion. Of  this  Hall  says:  "  Title  by  prescription  arises  out  of  a 
long-continued  possession,  where  no  original  source  of  pro- 
prietary right  can  be  shown  to  exist,  or  where  possession  in 
the  first  instance  being  wrongful,  the  legitimate  proprietor  has 
neglected  to  assert  his  right  or  has  been  unable  to  do  so.  The 
principle  upon  which  it  rests  is  essentially  the  same  as  that  of 
the  doctrine  of  prescription  which  finds  a  place  in  every  munic- 
ipal law,  although  in  its  application  to  beings  for  whose  dis- 
1  Moore'a  "Digest,"  vol.  I,  pp.  267,  268. 


116  STATES  IN  INTERNATIONAL  LAW 

putes  no  tribunals  are  open  some  modifications  are  necessarily 
introduced.  .  .  .  Internationally,  therefore,  prescription  must 
be  understood  not  only  to  confer  rights  when  the  original  title 
of  the  community  to  the  lands  which  form  the  territory  of  the 
state  or  its  nucleus  is  too  mixed  or  doubtful  to  be  appealed  to 
with  certainty  or,  as  has  sometimes  occurred,  when  settlements 
have  been  made  and  enjoyed  without  interference  within  lands 
claimed,  and  perhaps  originally  claimed  with  right,  by  states 
other  than  that  forming  the  settlement."^ 

Territory  may  be  acquired  as  a  result  of  military  operations 
by  conquest.  This  may  in  the  course  of  time  become  more 
than  simple  military  occupation,  as  the  acquisition  may  harden 
to  conquest,  in  a  legal  sense,  with  a  permanent  title.  At  the 
close  of  a  war  this  may  be  incorporated  either  into  the  treaty 
of  peace  or  a  special  treaty  as  a  matter  of  cession.  Properly 
speaking,  title  by  conquest  is  not  accompanied  by  a  treaty  of 
cession.  If  territory  obtained  by  military  conquest  is  ceded 
by  treaty  afterward,  it  becomes  acquisition  by  cession. 

There  are,  of  course,  cases  of  cession  by  good-will  or  pur- 
chase in  times  of  peace  entirely  disconnected  with  warlike 
proceedings. 

"In  that  way,"  says  Taylor,  "the  colony  of  Louisiana  was 
ceded  by  France  to  Spain,  in  1762,  as  indemnity  for  the  loss 
of  Florida,  transferred  to  England  by  the  treaty  of  Paris;  and, 
in  1850,  Great  Britain  ceded  to  the  United  States  a  part  of  the 
Horseshoe  Reef,  in  Lake  Erie,  for  lighthouse  purposes.  As 
instances  of  cessions  for  valuable  considerations,  reference  may 
be  made  to  the  transfers  to  the  United  States  of  Louisiana  from 
France  in  1803;  of  Florida  from  Spain  in  1819;  and  of  Alaska 
from  Russia  in  1867.  In  the  treaty  of  Berlin,  1878,  Rumania 
returned  to  Russia  that  portion  of  Bessarabia  secured  at  her 
expense  through  the  treaty  of  Paris,  1856,  in  exchange  for  the 
Dobrudja,  taken  from  Turkey."  ^ 

In  our  acquisitions  after  the  Mexican  War  and  also  after 

1  Hall,  6th  ed.,  pp.  119,  120.  2  H.  Taylor,  pp.  275,  276. 


TERRITORIAL  JURISDICTION  OF  A  STATE  117 

the  Spanish-American  War,  we  voluntarily  paid  large  sums  of 
money  as  a  compensation  for  territories  acquired  from  each 
state.  • 

There  are  forms  of  temporary  or  quasi  cessions  that  may 
or  may  not  become  permanent.  Examples  of  these  may  be 
found  in  the  leasing  of  the  ports  of  Kiao-chau  to  Germany,  of 
Port  Arthur  and  Talien-wau  to  Russia,  and  of  Wei-hai-wei  to 
Great  Britain,  on  the  part  of  China.  Instances  of  another 
but  of  a  related  nature  are  found  in  the  administrative  occupa- 
tion of  Cyprus  and  Egypt  by  Great  Britain,  the  nominal  sover- 
eignty in  these  latter  cases  remaining  with  Turkey.  So  far  as 
the  lease  of  Kiao-chau  to  Germany  is  concerned,  the  then  im- 
perial government  of  China  transferred  to  Germany,  for  the 
period  of  the  lease,  all  of  its  sovereign  rights  within  the  leased 
territory.  The  best  authorities  seem  to  agree  as  to  this  case 
that  the  restoration  of  the  territory  in  question  at  the  end  of  the 
specified  time  is  not  likely,  and  that  generally  the  pretended 
leases  are  really  alienations  so  disguised  as  to  spare  the  feelings 
of  the  state  concerned  and  its  inhabitants.  As  to  Cyprus, 
there  has  been  a  real  dismemberment  of  its  sovereignty.  Along 
with  the  whole  of  its  name,  the  Sultan  of  Turkey  retains  only 
an  insignificant  portion  of  its  sovereignty.  The  British  high 
commissioner  makes  and  unmakes  "laws  and  ordinances  with 
the  advice  of  a  legislative  council,  subject  to  a  power  of  dis- 
allowance retained  by  the  British  crown,  which  can  also  legis- 
late directly  for  the  island  by  order  in  council." ^ 

There  are  yet  to  be  discussed  what  are  generally  known  as 
colonial  protectorates  and  spheres  of  influence.  As  to  the 
former,  Westlake,  the  best  authority  upon  the  subject,  says 
that  "a  colonial  protectorate,  then,  may  be  defined  as  a  region 
in  which  there  is  no  state  of  international  law  to  be  protected, 
but  which  the  power  that  has  assumed  it  does  not  yet  claim  to 
be  internationally  its  territory,  although  that  power  claims  to 
exclude  all  other  states  from  any  action  within  it.  The  British 
»  Weatlake,  "Int.  Law,"  I,  pp.  137,  138. 


118  STATES  IN  INTERNATIONAL  LAW 

protectorates  in  Africa  which  appear  still  to  bear  that  character 
are  those  of  the  Gambia,  Sierra  Leone,  and  Lagos,  respectively 
adjoining  the  three  colonies  of  those  names,  and  those  of 
Northern  and  Southern  Nigeria,  British  Central  Africa,  British 
East  Africa,  Uganda,  and  Somaliland.  In  the  Indian  archi- 
pelago there  is  a  protectorate  which  the  British  Government 
proclaimed,  in  1888,  over  the  so-called  state  of  North  Borneo, 
to  which  name  there  is  nothing  to  answer  except  the  territory- 
held  by  the  British  North  Borneo  Company,  under  grants 
made  by  the  sultans  of  Brunei  and  Sulu,  both  Mohammedan 
rulers,  and  which  is  now  administered  by  the  company,  subject 
to  its  appointment  of  the  governor  being  approved  by  the 
British  secretary  of  state.  "^ 

There  are  two  kinds  of  spheres  of  injQuence,  or,  as  they  are 
sometimes  called,  spheres  of  interest. 

The  first  kind  consists  of  agreements  between  two  or  more 
nations  to  abstain  reciprocally  from  territorial  expansion.  As 
an  example  of  this  kind,  we  can  cite  the  declaration  of  April  6, 
1886,  between  Germany  and  Great  Britain,  by  which  a  line 
of  demarcation  was  set  up  in  the  western  Pacific  and  a  recip- 
rocal engagement  entered  into  as  follows: 

"Germany  (or  Great  Britain)  engages  not  to  make  acquisi- 
tions of  territory,  accept  protectorates,  or  interfere  with  the 
extension  of  British  (or  German)  influence  and  to  give  up  any 
acquisitions  of  territory  or  protectorates  already  established, 
in  that  part  of  the  western  Pacific  lying  to  the  east,  southeast, 
or  south  (west,  northwest,  or  north)  of  the  said  conventional 
Hne."2 

Hall,  in  discussing  this  question,  says:  "It  is  not  likely  that 
an  influencing  government  will  find  itself  able,  for  any  length  of 
time,  to  avoid  the  adoption  of  means  for  securing  the  safety  of 
foreigners  and,  consequently,  of  subjecting  the  native  chief  to 
steady  interference  and  pressure.    Duty  toward  friendly  coun- 

» Westlake,  "Int.  Law,"  I,  pp.  123,  124. 
•Westlake,  "Int.  Law,"  I,  p.  128. 


TERRITORIAL  JURISDICTION  OF  A  STATE  119 

tries  and  self-protection  against  rival  powers  will  alike  com- 
pel a  rapid  hardening  of  control,  and  probably,  before  long, 
spheres  of  influence  are  destined  to  be  merged  into  some  un- 
organized form  of  protectorate  analogous  to  that  which  exists 
in  the  Malay  Peninsula."^ 

A  case  of  this  nature  is  the  delimitation  of  the  Anglo-Egyptian 
and  French  spheres  of  influence  in  North  Central  Africa  as  a 
result  of  the  Fashoda  incident  in  1898. 

A  not  uncommon  method  of  arrangements  of  spheres  of 
interest  or  influence  is  by  agreements  in  the  Far  East,  by  which 
a  state  there  binds  itself  not  to  alienate  territory  to  another 
power,  eithc^  European  or  Oriental.  China  is  generally  the 
subject  of  such  agreements  so  far  as  territory  is  concerned.  In 
1898  China  made  an  agreement  with  Great  Britain  not  to 
alienate  any  territory  in  the  provinces  adjoining  the  Yangtze 
to  any  other  power,  in  any  form  or  designation;  with  France 
not  to  alienate  any  portion  of  the  provinces  of  Kwantung, 
Kwangsi,  and  Yunnan;  and  with  Japan  not  to  alienate  the 
province  of  Fokien.  In  1897  China  made  the  same  promise 
also  to  France  so  far  as  the  Island  of  Hainan  in  southern  China 
was  concerned.  "By  these  means  the  respective  stipulating 
power  makes  known  to  the  world  that  it  claims,  next  to  the 
state  actually  in  possession,  an  interest  in  the  given  territory."^ 
It  is  hardly  necessary  to  tell  how  closely  connected  the  United 
States  and  Cuba  are  by  reason  of  engagements  of  a  somewhat 
similar  nature. 

66.  Boundaries  of  States. — In  the  treaty  between  Great 
Britain  and  Venezuela  concluded  at  Washington,  February  20, 
1897,  for  the  settlement  of  the  boundaries  between  British 
Guiana  and  Venezuela,  in  which  the  United  States  took  part, 
the  following  rules  were  drawn  up  and  agreed  to  by  the  three 
parties.  These  rules  deal  largely  upon  the  determination  of 
boundaries  by  prescription. 

»  Hall,  "Foreign  Powers,"  etc.,  p.  230. 
»  Hall,  "Foreign  Powers,"  etc.,  p.  132. 


120  STATES  IN  INTERNATIONAL  LAW 

"(A) — Adverse  holding  or  prescription  during  the  period  of 
fifty  years  shall  make  a  good  title.  The  arbitrators  may  deem 
exclusive  political  control  of  a  district,  as  well  as  actual  settle- 
ment thereof,  suflBcient  to  constitute  adverse  holding  or  to 
make  title  by  prescription. 

"(B) — The  arbitrators  may  recognize  and  give  effect  to 
rights  and  claims  resting  on  any  other  ground  whatever,  valid 
according  to  international  law,  and  on  any  principles  of  inter- 
national law  which  the  arbitrators  may  deem  to  be  applicable 
to  the  case  and  which  are  not  in  contravention  of  the  foregoing 
rule. 

"(C) — In  determining  the  boundary  line,  if  territory  of  one 
party  be  found  by  the  tribunal  to  have  been  at  the  date  of 
this  treaty  in  the  occupation  of  the  subjects  or  citizens  of  the 
other  party,  such  effect  shall  be  given  to  such  occupation  as 
reason,  justice,  the  principles  of  international  law,  and  the  equi- 
ties of  the  case  shall,  in  the  opinion  of  the  tribunal,  require."^ 

In  the  determination  of  boundaries  between  the  United  States 
and  a  foreign  nation,  courts  of  the  United  States  recognize  the 
question  as  a  political  one  and  hence  follow  the  decision  of 
the  legislative  and  executive  departments  to  which  the  asser- 
tion of  its  interests  against  foreign  powers  is  confided.^ 

Generally,  boundary  lines  are  defined  either  by  natural  char- 
acteristics or  follow  imaginary  astronomical  or  mathematical 
lines.  If  they  are  not  based  upon  prescription  or  immemorial 
custom  they  are  fixed  by  treaties. 

Natural  boundaries  are  formed  mostly  by  mountains,  rivers, 
or  other  waters,  or  by  the  open  sea.  Artificial  boundaries  are 
based  upon  latitude  and  longitude  and  are  marked  by  various 
walls,  stones,  monuments,  or  landmarks.  These  artificial  lines, 
so  marked  and  agreed  upon,  are  considered  as  the  established 
boundaries,  even  if  it  should  afterward  appear  that,  by  error  of 
calculation  or  observations,  they  varied  from  the  proposed  lines, 
or  were  not  straight. 

1  Moore's  "  Digest,"  vol.  I,  p.  297.  *  Moore's  "  Digest,"  vol.  I,  p.  743. 


TERRITORIAL  JURISDICTION  OF  A  STATE  121 

Wlien  the  boundary  line  is  marked  by  a  river,  if  it  should 
be  navigable  the  line  follows  the  deepest  channel  (the  Thal- 
weg), if  navigable,  and  the  middle  line  of  that  channel.  In 
case  the  deepest  channel  is  unfitted  by  rocks,  etc.,  for  purposes 
of  navigation,  the  middle  of  the  most  suitable  channel  is  gen- 
erally used  for  the  purpose,  the  islands  being  allotted  according 
to  their  relative  position  therewith.  Sometimes  the  original 
state  grants  to  a  separating  state  the  territory  on  one  side  only, 
in  which  case  the  whole  of  the  river  remains  under  the  juris- 
diction of  the  original  state,  the  domain  of  the  new  state  ex- 
tending only  to  the  low-water  mark  of  the  stream,  whether 
tidal  or  otherwise.  Public  navigable  rivers  can  be  defined  as 
those  which  are  used,  or  are  susceptible  of  being  used,  in  their 
ordinary  condition,  as  highways  for  commerce,  over  which 
trade  and  travel  can  be  conducted  in  the  ordinary  ways  of 
water  travel.  If  the  river  should  not  be  navigable,  the  bound- 
ary line  is  construed  to  run  down  the  middle  of  the  stream. 
If  a  river  is  declared  to  be  a  boundary  between  states,  it  con- 
tinues to  be  the  boundary  even  if  it  should  gradually  change 
its  position  and  channels  from  natural  causes.  But  if  a  river 
should  suddenly  change  its  course  or  desert  the  original  channel, 
it  has  been  declared  by  law  that  the  boundary  remains  in  the 
middle  of  the  deserted  river  bed.^ 

Where  a  boundary  follows  mountains  or  hills,  the  water 
divide,  if  well  defined,  constitutes  the  frontier.^  Where  the 
mountains  or  hills  are  a  confused  mass,  the  question  becomes 
more  difficult.  Lord  Curzon  speaks  of  the  "geographical  fact 
that,  in  the  greatest  mountain  systems  of  the  world,  for  instance 
the  Himalayas  and  the  Andes,  the  water  divide  is  not  identical 
with  the  highest  crest."  Great  difficulties  have  arisen  to  make 
an  approved  line  in  mountains  which  are  the  boundary  between 
the  Argentine  and  Chilian  republics  and  also,  later,  in  the 
mountains  of  the  Alaskan  boundary  between  Canada  and  the 
United  States. 

»  Scott's  "  Cases,"  pp.  123  and  131.  »  Hall,  6th  ed.,  p.  123. 


122  STATES  IN  INTERNATIONAL  LAW 

When  states  are  separated  by  lakes  or  landlocked  seas,  the 
boundaries  follow  the  middle  of  such  bodies  of  water.  Among 
the  Great  Lakes  of  America,  Lakes  Huron,  Erie,  and  Ontario, 
which  belong  to  Canada  and  the  United  States,  carry  the  bound- 
ary line  in  the  middle  of  the  lakes,  though  the  use  of  these 
waters  is  common  to  both  bordering  states. 

In  a  strait,  or  narrow  passage  of  water,  the  boundary  line 
can  be  determined  by  practically  the  same  principles  as  that  of 
boundary  navigable  rivers  unless  special  treaties  make  other 
arrangements.  In  our  own  country  we  have,  as  an  example 
of  such  a  case,  the  Strait  of  Juan  de  Fuca  and  its  continuous 
waters  on  our  extreme  northwest  boundary.  By  the  treaty  of 
June  15,  1846,  with  Great  Britain,  the  boundary  line  between 
the  possessions  of  the  two  countries  follows  the  49th  parallel 
of  north  latitude  until  it  reaches  the  middle  of  the  channel 
separating  the  continent  from  Vancouver  Island  and  thence 
proceeds  southerly  through  the  middle  of  this  channel  and  by 
the  Strait  of  Fuca  to  the  Pacific  Ocean,  providing  that  the 
navigation  of  the  strait  and  contiguous  channel  remained  free 
and  open  to  both  parties.  In  this  case  the  channels  are  bordered 
on  either  side  by  the  territories  of  Great  Britain  and  the  United 
States  alone,  and  the  use  of  the  channels  is  largely  limited  to 
an  approach  to  the  ports  of  the  respective  countries  and  not 
for  general  passage  and  commercial  use. 

In  the  case  of  the  Straits  of  Magellan  it  is  different.  The 
connection  afforded  by  these  straits  is  interoceanic,  while  the 
bordering  territory  is  that  of  one  country — the  republic  of  Chile. 
The  United  States  has  always  insisted  that  these  straits  make 
one  of  the  great  highways  of  the  world  and  that  no  obstacle 
in  war  or  peace  time  should  be  allowed  to  exist  and  interfere 
with  their  use  by  all  nations.  Fortunately,  the  treaty  between 
the  Argentine  Republic  and  Chile,  of  July  23,  1881,  which  set- 
tled the  question  of  boundary  lines  and  territories  in  this  part 
of  the  world,  provides  that  these  straits  are  neutralized  forever 
and  guarantees  to  the  vessels  of  all  nations  free  navigation. 


TERRITORIAL  JURISDICTION  OF  A  STATE  123 

To  insure  both  this  liberty  and  neutrality,  no  fortifications  or 
military  defences  were  to  be  constructed  or  allowed  that  could 
interfere  with  these  objects. 

67.  State  Servitudes. — State  servitudes  have  been  defined 
by  Oppenheim  as  "those  exceptional  and  conventional  re- 
strictions on  the  territorial  supremacy  of  a  state  by  which  a 
part  or  the  whole  of  its  territory  is,  in  a  limited  way,  made  per- 
petually to  serve  a  certain  purpose  or  interest  of  another  state. 
Thus  a  state  may,  by  a  convention,  be  obliged  to  allow  the 
passage  of  troops  of  a  neighboring  state,  or  may  in  the  interest 
of  a  neighboring  state  be  prevented  from  fortifying  a  certain 
town  near  the  frontier."^ 

This  seems  to  be  a  proper  comprehension  of  the  subject, 
although  there  is  considerable  difference  among  writers  both 
as  to  the  definition  and  scope  of  state  servitudes.  There  is  a 
general  agreement,  however,  as  to  its  existence  and  to  the  fact 
of  its  limitation  to  and  between  states  alone.  State  servitudes 
are  territorial  in  their  nature  and  have  for  their  objective  the 
territory  of  a  state,  in  part  or  whole,  and  the  consequent  re- 
striction of  its  territorial  supremacy.  "Since  the  territory  of 
a  state,"  Oppenheim  goes  on  to  say,  "includes  not  only  the  land 
but  also  the  rivers  which  water  the  land,  the  maritime  belt,  the 
territorial  subsoil,  and  the  territorial  atmosphere,  all  these 
can,  as  well  as  the  service  of  the  land  itself,  be  an  object  of 
state  servitudes.  Thus  a  state  may  have  a  perpetual  right  of 
admittance  for  its  subjects  to  the  fishery  in  the  maritime  belt 
of  another  state,  or  a  right  to  lay  telegraph-cables  through  a 
foreign  maritime  belt,  or  a  right  to  make  and  use  a  tunnel 
through  a  boundary  mountain,  and  the  like."'* 

A  classification  is  often  made  of  state  servitudes.  Hershey 
divides  them  into  positive  and  negative,  while  Oppenheim  adda 
military  and  economic  servitudes.  Following  the  former  classi- 
fication, it  can  be  said  that  positive  or  affirmative  servitudes 

*  Oppenheim,  vol.  I,  pp.  273,  274. 

•  Oppenheim,  vol.  I,  pp.  276,  277. 


124  STATES  IN  INTERNATIONAL  LAW 

can  be  defined  as  those  which  give  a  state  a  right  as  a  state  to 
perform  certain  acts  on  the  territory  of  another  state,  such  as 
to  build  and  work  a  railway,  to  collect  customs  dues,  and  the 
exercise  of  certain  judicial  functions.  Examples  of  these  are 
the  control  and  use  of  certain  railways  in  Manchuria  by  Russia 
and  Japan,  the  collection  of  customs  dues  in  San  Domingo  by 
the  United  States,  and  the  exercise  of  consular  rights  of  juris- 
diction in  Turkey  and  China. 

Negative  servitudes  are  those  requiring  a  state  to  abstain 
from  doing  certain  acts  inherent  to  its  tec  .torial  supremacy. 
The  agreement  on  the  part  of  the  United  States  and  Great 
Britain  not  to  keep  a  strong  naval  force  in  the  Great  Lakes  is 
of  that  nature  and  also  the  one  which  required  Montenegro 
not  to  allow  foreign  men-of-war  in  the  harbor  of  Antivari. 

Military  servitudes  would  include  the  use  of  a  port  or  island 
as  a  naval  port,  or  coaling  station,  as  in  the  case  of  Guantanamo 
in  Cuba  and  coaling  ports  in  the  state  of  Panama.  The  agree- 
ment between  Russia  and  Japan,  contained  in  the  treaty  of 
Portsmouth,  not  to  construct  fortifications  in  their  respective 
parts  of  the  island  of  Sakhalin  is  also  of  that  nature,  as  well  as 
the  obligation  imposed  upon  Russia  not  to  maintain  arsenals 
or  fleets  upon  the  Black  Sea. 

Economic  servitudes  are  those  which  are  obtained  or  exist 
for  commercial  reasons  or  for  intercourse,  such  as  the  right  of 
fisheries,  to  build  and  work  railways,  or  to  lay  a  cable  in  or 
through  foreign  territorial  waters.  Servitudes,  as  a  rule,  are 
not  extinguished  by  conquest  or  cession  and  are  obligatory 
upon  the  annexing  state.  As  servitudes  come  into  existence 
by  compact,  they  are  naturally  brought  to  a  close  in  the  same 
way  or  by  renunciation  on  the  part  of  the  state  enjoying  such 
privileges.  The  theory  of  state  servitudes  was  restricted  by 
the  decision  in  the  opinion  of  the  court  of  arbitration  at  The 
Hague,  in  1910,  in  the  case  of  the  north  Atlantic  fisheries  be- 
tween Great  Britain  and  the  United  States,  to  an  express  grant 
of  a  sovereign  right;  if  this  means  a  restriction  upon  the  terri- 


TERRITORIAL  JURISDICTION  OF  A  STATE  125 

torial  supremacy  of  a  state,  it  seems  beyond  dispute;  but  if  it 
means  more,  it  does  not  accord  with  present  facts  and  usage. 

68.  Territorial  Waters. — The  open  sea  is  not  within  the 
jurisdiction  of  any  one  state  primarily,  because  it  is  incapable 
of  occupation  or  possession. 

This  incapacity  for  occupation  or  possession  does  not  re- 
main, as  the  sea  borders  closely  the  land  territory  of  a  state. 
Of  this  WTieaton  says  "that  by  the  generally  approved  usage 
of  nations,  which  forms  the  basis  of  international  law,  the  mari- 
time territory  of  e .  ery  state  extends: 

First.  "To  the  ports,  harbors,  bays,  mouths  of  rivers,  and 
adjacent  parts  of  the  sea  enclosed  by  headlands  belonging  to 
the  same  state. 

Second.  "To  the  distance  of  a  marine  league,  or  as  far  as 
a  cannon  shot  will  reach  from  the  shore,  along  all  the  coasts 
of  the  state. 

Third.  "To  the  straits  and  sounds,  bounded  on  both  sides 
by  the  territory  of  the  same  state,  so  narrow  as  to  be  com- 
manded by  cannon  shot  from  both  shores  and  communicating 
from  one  sea  to  another."^ 

The  waters  given  under  the  first  head  are  manifestly  capable 
of  being  occupied  by  the  exercise  of  the  sovereignty  of  the  state 
which  they  adjoin  or  by  whose  land  territory  they  are  enclosed. 

The  occupation  of  these  waters  results  from  the  command 
over  them  given  by  permanent  or  temporary  fortifications,  by 
mobile  artillery  and  infantry  on  shore,  by  submarine  mines, 
and,  finally,  by  the  naval  forces  of  various  kinds  belonging  to 
the  state.  These  forces  are  not  required  to  be  omnipresent 
any  more  than  the  police  force  of  the  state  is  required  to  be 
so,  but  they  should  be  sufficiently  in  existence  to  meet  the  prob- 
able demands  made  upon  them.  As  the  matter  stands,  there 
is  no  moral  or  physical  reason  why  the  waters,  as  enumerated, 
should  not  be  under  the  exclusive  control  of  the  state  within 
whose  limits  they  partly  lie. 

»  Dana's  "Wheaton,"  8th  ed.,  p.  270. 


126  STATES  IN  INTERNATIONAL  LAW 

"Consequently,"  says  Wheaton,  "the  state  within  whose 
territorial  limits  these  waters  are  included  has  the  right  of 
excluding  every  other  nation  from  their  use.  The  exercise  of 
this  right  may  be  modified  by  compact,  express  or  implied, 
but  its  existence  is  founded  upon  the  mutual  independence  of 
nations,  which  entitles  every  state  to  judge  for  itself  as  to  the 
manner  in  which  the  right  is  to  be  exercised,  subject  to  the 
equal  reciprocal  rights  of  all  other  states  to  establish  similar 
regulations  in  respect  to  their  own  waters."^ 

Some  states  claim  jurisdiction  over  certain  bays  whose 
points  of  entrance  are  at  a  distance  of  over  six  miles,  and  which 
may  be  too  great  to  be  commanded  by  batteries  placed  at  the 
entrance.  If  these  claims  are  based  upon  settled  usage  of 
long  duration,  they  are  generally  conceded  by  other  nations. 
The  United  States  claims,  for  instance,  the  entire  area  of  the 
Chesapeake  and  Delaware  Bays,  while  Great  Britain  claims 
the  whole  of  Conception  Bay,  in  Newfoundland,  which  has  an 
entrance  of  fifteen  miles.  In  the  case  before  The  Hague  tri- 
bunal of  the  United  States  and  Great  Britain  in  regard  to  the 
north  Atlantic  coast  fisheries,  it  was  decided  that  the  three 
marine  miles  are  to  be  measured  at  right  angles  from  a  straight 
line  across  the  body  of  water  at  the  place  where  it  ceases  to 
have  the  configuration  and  characteristics  of  a  bay.  At  all 
other  places  the  marine  league  is  to  be  measured  from  the  shore 
line,  following  the  sinuosities  of  the  coast. 

69.  The  Marine  League. — Under  the  second  head  of  the 
classification  just  given  comes  what  is  generally  known  as  the 
marine  league,  or  the  three  sea  miles.  Representing,  as  this 
league  did,  the  range  of  cannon,  this  distance  may  be  said  to 
be  now  obsolete  as  a  maximum  range  of  artillery,  but  as  a  dis- 
tance measured  from  low-water  mark  it  has  become  an  ac- 
cepted and  existing  usage  for  the  width  of  the  littoral  sea. 
Certainly  no  state  claims  less. 

As  to  a  maximum  distance,  the  agreement  is  not  so  universal, 
1  Dana's  "Wheaton,"  8th  ed.,  p.  271. 


TERRITORIAL  JURISDICTION  OF  A  STATE  127 

the  range  of  modern  artillery,  as  just  said,  having  greatly  in- 
creased, and  hence  consequent  claims  have  been  made  by  Spain, 
for  instance,  for  a  distance  of  six  sea  miles  and  by  Sweden  for 
four  miles.  The  Institute  of  International  Law  has  even  recom- 
mended a  distance  of  six  miles.  In  the  Suez  Canal  convention 
'and  the  Hay-Pauncefote  treaty  the  distance  of  three  miles  is 
stated,  however,  as  the  official  distance  for  the  observance  of 
neutrality,  and  so  far  as  these  treaty  obligations  are  concerned 
they  remain  binding. 

The  area  of  the  land  or  island  from  which  the  marine  league 
is  based  is  of  no  consequence  so  far  as  the  principle  is  concerned. 
An  isolated  rock  of  minute  area,  incapable  of  holding  a  great 
gun,  can,  however,  be  considered  as  beyond  the  principle  of 
the  dependent  marine  league. 

The  case  of  pearl  fisheries  is  an  exceptional  one.  When  car- 
ried on,  as  in  the  cases  of  those  of  the  island  of  Ceylon  or  in 
the  Persian  Gulf,  they  have  been  considered  as  a  proper  ex- 
tension of  the  territorial  limits  over  the  bed  of  the  sea  and  its 
overlying  waters  beyond  the  marine  league.  These  fisheries 
are  under  the  protection  and  control  of  British  vessels  and 
authority,  to  the  extent  of  a  virtual  occupation,  which  is  sanc- 
tioned, so  far  as  the  Persian  Gulf  is  concerned,  by  treaties  made 
with  chiefs  on  the  neighboring  mainland  of  Arabia. 

Oppenheim  gives  the  following  principles,  which  he  considers 
as  in  accordance  with  the  theory  and  practice  of  the  jurisdiction 
of  the  bordering  or  littoral  state  over  the  marine  league: 

"1.  The  littoral  state  can  exclusively  reserve  the  fishery 
within  the  maritime  belt  for  its  own  subjects,  whether  fish  or 
pearls  or  amber  or  other  products  of  the  sea  are  in  considera- 
tion. 

"2.  The  littoral  state  can,  in  the  absence  of  special  treaties 
to  the  contrary,  exclude  foreign  vessels  from  navigation  and 
trade  along  the  coast,  the  so-called  cabotage,  and  reserve  this 
cabotage  exclusively  for  its  own  vessels.  Cabotage  meant,  orig- 
inally, navigation  and  trade  along  the  same  stretch  of  coast 


128  STATES  IN  INTERNATIONAL  LAW 

between  the  ports  thereof,  such  coast  belonging  to  the  territory 
of  one  and  the  same  state.  However,  the  term  cabotage,  or 
coasting  trade,  as  used  in  commercial  treaties,  comprises  now 
sea  trade  between  any  two  ports  of  the  same  country,  whether 
on  the  same  coasts  or  different  coasts,  provided  always  that 
the  different  coasts  are,  all  of  them,  the  coasts  of  one  and  the 
same  country  as  a  political  and  geographical  unit  in  contra- 
distinction to  the  coasts  of  colonial  dependencies  of  such  coun- 
try. 

"3.  The  littoral  state  can  exclusively  exercise  police  con- 
trol within  its  maritime  belt  in  the  interest  of  its  custom- 
house duties,  the  secrecy  of  its  coast  fortifications,  and  the  like. 
Thus  foreign  vessels  can  be  ordered  to  take  certain  routes  and 
to  avoid  others. 

"4.  The  littoral  state  can  make  laws  and  regulations  regard- 
ing maritime  ceremonials  to  be  observed  by  such  foreign  mer- 
chantmen as  enter  its  territorial  maritime  belt."^ 

In  accordance  with  general  usage,  the  marine  league  of  a 
maritime  state  is  open  to  merchant  vessels  of  all  states  for 
innocent  navigation.  This  rule  is,  however,  not  an  absolute 
one,  as  the  principles  first  quoted  show.  If  the  innocent  pas- 
sage is  necessary  to  reach  other  waters,  such  passage  cannot 
be  denied  in  time  of  peace.  If  the  passing  vessel  anchors,  the 
police  control  becomes  closer. 

"As  a  rule,  crimes  committed  within  the  maritime  belt  on 
board  of  merchantmen  passing  through  for  other  regions,  either 
against  property  or  persons  within  the  vessel,  are  considered 
to  be  outside  the  jurisdiction  of  the  bordering  state,  but  if  they 
involve  the  rights  or  interests  of  this  state  or  its  inhabitants 
or  citizens  outside  of  the  ship,  they  are  then  to  be  taken  cog- 
nizance of. 

"The  right  of  foreign  men-of-war  to  pass  freely  and  inoffen- 
sively within  the  maritime  belt  of  a  state  is  in  a  different  cate- 
gory. Such  passage,  however,  can  be  considered  as  a  permitted 
^  Oppenheim,  2d  ed.,  vol.  I,  p.  258. 


TERRITORIAL  JURISDICTION  OF  A  STATE  129 

usage,  but  hardly  as  a  well-established  right  except  when  used 
as  a  transit  over  a  necessary  highway  to  other  waters  and 
countries."^ 


The  right  of  hot  pursuit  beyond  the  marine-league  limit,  has 
been  exercised  by  Great  Britain,  France,  and  the  United  States 
and  has  been  accepted  without  opposition  except  with  the 
limitations  shown  in  the  Itaia  case,  below  given. 

In  1891,  during  the  civil  war  in  Chile,  the  leaders  of  the 
congressional  party,  which  had  not  then  been  accorded  belliger- 
ent rights,  sent  to  the  United  States  the  armed  transport 
Itata,  for  the  purpose  of  carrying  to  Chile  a  cargo  of  arms  and 
munitions  of  war  for  the  insurgents.  The  Itata  was  subse- 
quently seized  at  San  Diego,  Cal.,  on  a  charge  of  violation  of 
the  neutrality  laws.  While  in  charge  of  a  care  keeper  of  the 
United  States  marshal,  the  Itata,  against  his  will  and  protest, 
left  the  port.  The  marshal's  keeper  was  put  on  shore,  and 
the  Itata  then  proceeded  to  San  Clemente  Island  near  by, 
still  within  the  jurisdiction  of  the  United  States;  here  she  re- 
ceived a  cargo  of  arms  and  ammunition  which  had  been  sent 
from  San  Francisco  and  then  proceeded  to  Iquique,  Chile, 
under  the  convoy  of  the  Chilian  cruiser  Esmeralda,  then  in 
the  service  of  the  insurgents.  Orders  had  been  given  in  the 
meantime  to  the  U.  S.  S.  Charleston,  and  the  U.  S.  S.  Omaha 
to  go  in  search  of  the  Itata,  and  if  she  were  found  at  sea  to  seize 
her  and  bring  her  into  port.  If  she  was  found  under  convoy 
of  a  Chilian  war  vessel,  the  circumstances  of  the  escape  were 
to  be  explained  and  a  demand  made  for  her  restoration  to  the 
possession  of  the  United  States;  if  this  demand  was  refused,  it 
was  to  be  enforced,  if  practicable.  The  Itata  arrived,  however, 
at  Iquique,  Chile,  without  being  intercepted;  but  before  her 
arrival  there  the  insurgent  Chilian  authorities  expressed  dis- 
approval of  what  had  been  done  and  promised  to  restore  her 
to  the  possession  of  the  United  States,  together  with  the  cargo 
of  arms,  etc.,  taken  on  board  at  San  Diego.  Wlien  they  found 
1  Stockton,  "Maauiil/*  pp.  91,  etc. 


130  STATES  IN  INTERNATIONAL  LAW 

that  the  arms,  etc.,  had  been  taken  on  board  at  San  Clemente 
Island  instead  of  San  Diego,  the  insurgent  authorities  desired 
to  retain  them,  but  Rear-Admiral  McCann,  the  senior  United 
States  naval  ofl5cer  at  Iquique,  declined  to  accede  to  this  re- 
quest, as  the  arms  were  taken  on  board  within  the  jurisdiction 
of  the  United  States,  and  consequently  the  vessel,  though  no 
demand  for  her  surrender  had  been  made,  was  given  up  to  the 
naval  authorities,  together  with  her  cargo,  and  taken  back  to 
San  Diego  to  abide  the  judgment  of  the  court.* 

This  case  was  brought,  finally,  before  the  mixed  commission 
constituted  to  settle  United  States  and  Chilian  claims,  which 
declared,  after  examination  of  many  authorities,  that  the 
United  States  committed  an  act  for  which  it  was  liable  for 
damages,  and  for  which  it  should  be  held  to  answer.  The 
Itata  not  only  was  pursued  for  a  very  considerable  distance 
and  space  of  time  on  the  high  seas  but  was  pursued  while  fol- 
lowing the  ordinary  track  of  vessels  bound  to  a  Chilian  port, 
and  was  taken  possession  of  while  in  the  territorial  waters  of 
Chile. 

As  to  straits  and  sounds  which  are  mentioned  in  the  descrip- 
tion of  the  maritime  territory  of  a  state,  it  may  be  said  that 
the  marine  league  of  three  miles  remains  as  the  defining  ele- 
ment of  territorial  distance.  If  a  strait  is  six  miles  or  less  in 
width  and  is  bordered  on  both  sides  by  the  territory  of  one 
state  only,  it  belongs  to  the  territory  of  that  state.  Thus  the 
Solent,  which  divides  the  Isle  of  Wight  from  England,  is  Brit- 
ish, and  the  Dardanelles  and  the  Bosphorus  are  Turkish.  On 
the  other  hand,  if  a  narrow  strait  is  bordered  by  two  dififerent 
states,  it  is  divided  between  the  two  states,  the  boundary  line 
normally  passing  midway  between  the  countries  through  the 
mid-channel.  Of  course,  this  can  be  modified  by  special  treaty. 
The  status  of  the  Strait  of  Juan  de  Fuca  has  already  been  re- 
ferred to,  and  the  Lymoon  Pass  between  the  British  territory 
of  Hong  Kong  and  the  mainland  of  China  was  half  British  and 
» Stockton,  "Naval  Manual,"  pp.  95,  96. 


TERRITORIAL  JURISDICTION  OF  A  STATE  131 

half  Chmese  so  long  as  the  territory  opposite  Hong  Kong  was 
Chinese. 

70.  Straits. — "The  claims  of  states  over  wider  straits," 
says  Oppenheim,  "than  those  which  can  be  commanded  by 
guns  from  coast  batteries  are  no  longer  upheld.  Great  Britain," 
he  says,  "used  formerly  to  claim  the  narrow  seas — namely,  the 
St.  George's  Channel,  the  Bristol  Channel,  the  Irish  Sea,  and 
the  North  Channel — as  territorial,"  and  Phillimore  asserts  that 
"the  exclusive  right  of  Great  Britain  over  these  narrow  seas 
is  uncontested."  "But,"  Oppenheim  goes  on  to  say,  "it  must 
be  emphasized  that  this  subject  is  contested,  and  I  believe 
that  Great  Britain  would  now  no  longer  uphold  her  former 
claim;  at  least  the  Territorial  Waters  Jurisdiction  Act,  1878, 
does  not  mention  it."^  Certainly  such  rights  are  not  claimed 
or  conceded  by  any  other  writers  than  some  English  ones  who 
claim  various  maritime  areas  under  the  name  of  the  King's 
Chambers.  Of  this  Westlake,  one  of  the  best  of  English  au- 
thorities, says:  "But  it  is  only  in  the  case  of  a  true  gulf  that 
the  possibility  of  occupation  can  be  so  real  as  to  furnish  a  valid 
ground  for  the  assumption  of  sovereignty,  and  even  in  that  case 
the  geographical  features  which  may  warrant  the  assumption 
are  too  incapable  of  exact  definition  to  allow  of  the  claim  being 
brought  to  any  other  test  than  that  of  accepted  usage."^ 

When  a  territorial  strait  connects  two  parts  of  the  high  seas 
or  open  waters  foreign  merchantmen  cannot  be  excluded  from 
a  free  passage,  and  it  is  the  policy  of  the  United  States  to  in- 
sist upon  the  same  privilege  for  men-of-war.  If  the  strait 
connects  two  tracts  of  open  sea  as  the  Gut  of  Canso,  between 
Cape  Breton  Island  and  the  mainland  of  Nova  Scotia,  or  the 
Straits  of  Magellan,  "the  lawful  ulterior  destination,"  say? 
Westlake,  "is  clear,  and  there  is  a  right  of  transit  both  for  ships 
of  war  and  for  merchantmen.  If  the  strait  leads  through  a 
single  country  into  an  inland  sea  lying  entirely  within  the  same 
country,  as  was  formerly  the  case  of  the  Bosphorus,  leading 

» Oppenheim,  vol.  I,  p.  266.  »  Westlake,  "Int.  Law,"  I,  p.  188. 


132  STATES  IN  INTERNATIONAL  LAW 

through  Turkish  territory  land  on  both  sides  into  the  Black 
Sea,  entirely  surrounded  by  Turkish  land  until  Russia  gained 
a  footing  on  its  coast  by  the  treaty  of  Kainardji,  in  1774,  noth- 
ing is  presented  but  an  extreme  instance  of  a  bay  the  entrance 
to  which  is  less  than  twice  the  width  of  the  littoral  sea.  The 
rule  that  the  inner  part  of  such  a  bay,  no  matter  how  widely 
extended,  belongs  to  the  country  in  which  it  lies  must  be 
applied.  It  will  be  within  the  right  of  that  country  to  exclude 
foreign  navigation  from  its  internal  waters,  and,  consequently, 
from  the  strait  which  leads  to  them;  and,  in  fact,  at  the  time 
mentioned,  the  Black  Sea  was  a  closed  sea  of  the  Turkish  Em- 
pire, and  navigation  through  the  Bosphorus  was  forbidden  to 
foreign  ships  of  war  and  merchantmen  equally."^ 

By  various  treaties  since  1774  Turkey  has  agreed  to  the  free 
navigation  of  the  Dardanelles  by  merchant  vessels.  By  treaty 
with  the  principal  European  powers,  in  1841,  Turkey  declared 
the  maintenance  of  its  old  doctrine  by  which  the  entrance  of 
foreign  men-of-war  into  the  Dardanelles  and  the  Bosphorus 
was  prohibited.  This  was  agreed  to  by  the  participating 
powers,  as  was  also  the  declaration  of  the  Sultan  that  he  re- 
serves to  himself  the  right  to  deliver  firmans  of  passage  for  small 
vessels  of  war  to  be  employed  as  stationary  vessels  for  the 
various  missions  of  foreign  powers  at  Constantinople.  He  has 
also,  as  a  matter  of  fact,  given  firmans  of  passage  to  vessels 
carrying  crowned  heads,  and  in  one  case  to  the  flag-ship  with 
Admiral  Farragut  on  board. 

By  the  treaty  of  London  of  1871  the  right  of  exclusion  of 
men-of-war  from  the  Dardanelles  and  the  Bosphorus  was  again 
upheld,  and  at  the  same  time  the  right  of  free  navigation  for 
merchantmen  of  all  nations  was  confirmed.  The  United  States 
was  not  a  participating  power  in  this  case,  but,  without  agreeing 
to  the  validity  of  the  arrangement,  it  is  respected  by  it.  An 
additional  power  was  given  to  the  Sultan  by  the  same  treaty 
of  London  to  open  the  strait  in  time  of  peace  to  vessels  of  war 
1  Westlake,  "Int.  Law,"  I,  p.  197. 


TERRITORIAL  JURISDICTION  OF  A  STATE  133 

of  friendly  and  allied  powers,  in  case  he  should  consider  it  neces- 
sary in  order  to  secure  the  execution  of  the  treaty  of  Paris  of 
1856  which  closed  the  Crimean  War. 

In  the  meantime  the  conditions  formerly  existing  in  the 
Black  Sea  have  changed.  Instead  of  being  enclosed  within 
the  territory  of  one  power — Turkey — its  shore-line  is  also 
owned  by  Russia,  Rumania,  and  Bulgaria,  and  as  a  result  the 
Black  Sea  can  be  considered  as  an  open  sea  and  a  part  of  the 
Mediterranean.  It  is  no  longer  neutralized,  and  men-of-war 
are  no  longer  excluded  from  its  limits. 

Finally,  it  cannot  be  said  that  the  straits  leading  to  the 
Black  Sea  from  the  Mediterranean  are  closed  to  men-of-war, 
as  a  matter  of  legal  principle,  but  specifically  by  the  free  de- 
termination of  the  European  powers  to  continue  to  that  extent 
the  ancient  state  of  things,  as  an  engagement  with  the  Sultan, 
and  not  as  an  international  obligation/  in  which  the  United 
States  acquiesces. 

Upon  the  general  question  of  straits  the  following  resolu- 
tions, adopted  by  the  Institut  de  Droit  International  at  its 
sessions  in  1894,  are  worth  quoting.    They  are 

"1.  That  straits  whose  shores  belong  to  different  states  form 
part  of  the  territorial  waters  of  the  bordering  states  which 
exercise  sovereignty  to  the  middle  limit. 

"2.  That  straits  whose  shores  belong  to  one  state  form,  so 
far  as  concerns  approach  to  the  coast,  part  of  the  territorial 
waters  of  such  state,  although  they  may  be  indispensable  so 
far  as  a  means  of  maritime  communication  between  two  or 
more  states. 

"3.  That  straits  that  serve  as  a  passage  from  one  free  sea  to 
another  can  never  be  closed.  From  the  operation  of  these 
rules,  straits  actually  subject  to  conventions  or  special  usages 
were  expressly  reserved." 

Through  the  persistent  efforts  of  the  United  States,  in  which 
matter  Mr.  Henry  Wheaton,  then  our  minister  to  Denmark, 
1  Westlake,  "Int.  Law,"  I,  pp.  194-6. 


134  STATES  IN  INTERNATIONAL  LAW 

contributed  very  largely,  the  Sound  Dues  of  ancient  usage, 
levied  by  Denmark  on  vessels  passing  through  the  sound  and 
the  belts  forming  a  passage  between  the  North  Sea  and  the 
Baltic  were  abolished  in  1857,  and  the  Baltic  is  also  held  as 
an  open  sea. 

It  can  be  said  as  an  established  general  rule  that  if  a  strait 
forms  an  international  highway  the  right  of  innocent  passage 
for  foreign  war-ships  and  merchant  vessels  exists,  even  in  the 
case  of  straits  which  are  less  than  six  miles  wide. 

Lakes  and  landlocked  seas  which  are  entirely  surrounded  by 
the  land  territory  of  a  single  state  are,  naturally,  territory  of 
that  state,  which  has  exclusive  jurisdiction.  Lake  Michigan 
of  the  Great  Lakes  of  North  America  is  in  this  category.  If 
a  lake  or  sea  is  wholly  enclosed  by  more  than  one  state,  the 
waters  and  jurisdiction  are  divided  accordingly,  in  the  absence 
of  treaties  to  the  contrary. 

71.  Rivers. — As  to  great  navigable  rivers  lying  in  their 
entire  course  within  the  territory  of  one  state,  they  are  national 
in  character,  and  the  power  of  excluding  foreign  vessels  remains 
with  the  territorial  state.  This  may  be  modified  by  treaty, 
however.  If  a  seaport  is  situated  on  the  banks  of  a  river  of 
that  kind,  of  course  navigation  to  that  port  to  foreign  vessels 
is  freely  conceded.  Philadelphia  on  the  Delaware  River  and 
New  Orleans  on  the  Mississippi  are  familiar  instances  of  that 
kind  in  this  country. 

The  question  of  the  navigation  of  the  Mississippi  River  has 
a  peculiar  history.  The  treaty  of  peace  at  the  close  of  the 
Revolutionary  War,  in  1783,  provided  that  the  navigation  of 
the  Mississippi,  from  its  source  to  the  ocean,  shall  forever  re- 
main free  to  the  subjects  of  Great  Britain  and  citizens  of  the 
United  States.  At  that  time  it  was  supposed  that  the  head- 
waters of  the  river  were  in  British  territory,  while  the  river 
was  our  western  boundary  except  where  it  flowed  through 
Louisiana  and  the  Floridas.  Hence  at  the  time  it  was  an 
international  river,  subject  to  navigation  by  British,  Spaniards, 


TERRITORIAL  JURISDICTION  OF  A  STATE  135 

and  Americans.  By  the  subsequent  acquisition  of  Louisiana 
and  the  Floridas  by  the  United  States  and  the  discovery  that 
its  headwaters  were  within  the  Hmits  of  the  United  States, 
the  Mississippi  ceased  to  be  an  international  river,  and  the 
right  to  control  its  navigation  became  an  exclusive  right  within 
the  United  States. 

In  1871,  by  the  treaty  of  Washington,  the  rights  of  naviga- 
tion were  given,  in  an  international  sense,  to  the  St.  Lawrence 
River  and  also  to  the  Yukon,  Porcupine,  and  Stikine  Rivers. 
In  South  America  the  flags  of  all  nations,  as  well  as  those  of  the 
coriparian  states,  have  the  right  of  navigation  to  the  Amazon, 
the  Rio  de  la  Plata,  and  the  Orinoco.  The  great  rivers  of  the 
continent  of  Europe,  like  the  Rhine,  the  Scheldt,  and  the 
Danube,  are  examples  of  rivers  in  this  class  also. 

The  Amazon  River,  after  various  changes  in  policy,  has  been 
declared  open  to  merchant  vessels  of  all  nations;  this  includes 
men-of-war  so  far  as  the  maritime  ports  of  the  Amazon  are 
concerned,  but  the  Brazilian  Government,  in  1899,  stated  that, 
according  to  the  rule  of  Brazil,  the  commander  of  a  foreign 
man-of-war,  before  ascending  the  Amazon,  must  obtain  a 
formal  permission  from  the  governor  of  Para,  on  a  written  re- 
quest made  by  the  proper  consul  there. 

By  the  general  act  of  Berlin  of  February  25,  1885,  Article 
II,  all  nationalities  have  free  access  to  the  Congo  and  its 
affluents,  including  the  lakes,  as  well  as  to  any  canals  that  may 
be  constructed  to  unite  the  watercourses  or  lakes  within  the 
territories  of  the  state.  This  includes  the  free  navigation  of 
the  Congo  and  all  of  its  branches.^ 

As  to  these  rights  of  navigation,  technically  a  state  possessed 
of  one  portion  of  an  international  river  can  exclude  the  vessels 
of  a  coriparian  state  unless  otherwise  provided  by  treaty. 
Yet,  as  a  matter  of  comity  amounting  to  an  imperfect  right, 
it  does  not  withhold  such  privilege.  "Usage,"  as  Lawrence 
says,   "is  turning  against  the  ancient  rules.     It  is  now  set 

»  Stockton,  "Manual,"  p.  88. 


136  STATES  IN  INTERNATIONAL  LAW 

aside  by  treaty  stipulations,  but  in  time  the  new  usage  founded 
on  them  will  give  rise  to  a  new  rule,  and  no  treaty  will  then  be 
required  to  provide  for  the  free  navigation  of  an  international 
river  by  the  coriparian  states,  while  in  all  probability  the 
vessels  of  other  nations  will  be  allowed  to  come  and  go  with- 
out let  or  hinderance.  It  is,  and  no  doubt  will  remain,  an  ad- 
mitted principle  that  the  right  of  traversing  the  stream  carries 
with  it  the  right  of  using  the  banks  for  purposes  incidental  to 
navigation."^ 

72.  Interoceanic  Canals. — Ordinary  canals  within  the  ter- 
ritory of  one  and  the  same  state  have  somewhat  the  same 
status  as  rivers  under  international  law  in  similar  situations 
and  conditions.  The  Kiel  Canal  is  an  example  of  this  nature, 
being  entirely  within  German  jurisdiction,  though  connecting 
the  Baltic  and  the  North  Seas.  Germany  allows  the  naviga- 
tion of  this  canal  under  ordinary  circumstances  by  vessels  of 
all  nations.  Being  built  mainly  for  strategical  purposes,  its 
navigation  is  directly  and  exclusively  under  the  government 
of  the  German  Empire  under  all  conditions.  The  first  inter- 
oceanic canal  in  operation  worthy  of  the  name  was  the  Suez 
Canal,  which  connects  the  Mediterranean  with  the  Red  Sea, 
and  affords  a  route  to  the  Orient  as  an  alternative  to  that  by 
the  way  of  the  Cape  of  Good  Hope.  This  canal  is  in  Egyp- 
tian territory,  which  in  a  titular  sense  is  Turkish,  but  practically 
the  territory  is  under  the  control  of  Great  Britain.  The  canal 
itself  was  constructed  under  French  auspices,  and  it  is  worked 
as  a  private  canal  for  commercial  profit  and  purposes.  Great 
Britain  is  a  large  shareholder  and  politically,  though  not  ex- 
clusively, is  greatly  interested  in  it  as  a  route  to  Asiatic  waters 
and  to  the  great  British  Asiatic  and  Australian  possessions. 
Naturally  the  interest  in  this  route  as  one  of  the  great  sea 
routes  of  the  world  is  international,  and  its  status  is  one  of  great 
and  general  diplomatic  concern.  Its  position  and  use  have  much 
influence  in  all  questions  dealing  with  other  interoceanic  canals. 
^  Lawrence's  "Principles,"  p.  211. 


TERRITORIAL  JURISDICTION  OF  A  STATE  137 

In  regard  to  canals  in  general,  the  decisions  quoted  by  Moore, 
that  "  while  a  natural  thoroughfare,  although  wholly  within 
the  dominion  of  a  government,  may  be  passed  by  commercial 
ships  of  right,  yet  the  nation  which  constructs  an  artificial 
channel  may  annex  such  conditions  to  its  use  as  it  pleases."^ 
This,  of  course,  is  modified  or  restricted  by  any  treaties  which 
may  exist  or  which  may  be  entered  into  with  other  states  by 
the  state  which  constructs  the  canal  or  controls  the  territory 
through  which  it  passes. 

A  brief  history  of  the  diplomacy  connected  with  the  Suez 
Canal  is  as  follows: 

By  the  convention  of  Constantinople  of  1888  the  Suez  Canal 
was  declared  open  in  time  of  war  and  peace  to  merchant- 
men and  vessels  of  war  of  all  nations,  without  distinction  of 
flag,  and  also  that  the  canal  should  not  be  liable  to  blockade 
in  time  of  war  or  peace.  This  convention  was  signed  by 
Great  Britain,  Austria-Hungary,  and  Turkey.  The  whole 
treaty  comprises  seventeen  articles,  the  substance  of  Article  I 
having  just  been  given,  while  the  others  comprise  the  following 
stipulations: 

In  time  of  war  no  act  of  hostility  is  allowed  either  inside  the 
canal  or  within  a  marine  league  from  either  end.  The  usual 
rules  as  to  the  stay  and  departure  of  vessels  of  war  for  neutral 
ports  are  In  force  with  the  canal.  Turkey,  though  suzerain  of 
the  soil,  is  not  permitted  to  commit  any  act  of  hostility  within 
the  canal  limits.  Troops,  munitions  of  war,  etc.,  are  neither 
to  be  shipped  nor  landed  within  the  canal  or  its  terminal  ports. 

No  men-of-war  can  be  stationed  within  the  canal,  but  men- 
of-war  can  have  access  to  the  terminal  ports,  while  no  perma- 
nent fortifications  are  allowed  in  connection  with  the  canal. 
During  the  Spanish-American  War  Mr.  Hay,  then  our  am- 
bassador in  London,  Inquired  of  the  foreign  office  of  Great 
Britain  whether  there  had  been  any  modification  of  the  con- 
vention of  1888  which  would  place  the  non-signatory  powers, 
1  Moore's  "Digest,"  vol.  Ill,  p.  2G8. 


138  STATES  IN  INTERNATIONAL  LAW 

like  the  United  States,  on  any  different  footing  from  those 
signing  the  convention,  to  which  answer  was  made  that  there 
had  been  none,  and  as  a  result  in  that  war  the  Suez  Canal  was 
open  to  both  belligerents,  as  had  been  the  case  in  the  Franco- 
German  War  of  1870,  the  Russo-Turkish  War  of  1877,  and  since 
in  the  Russo-Japanese  War  of  1904. 

In  the  declaration  respecting  Egypt  and  Morocco,  signed 
at  London  in  1904  by  Great  Britain  and  France,  Article  6 
reads  as  follows:  "In  order  to  insure  the  free  passage  of  the 
Suez  Canal,  his  Britannic  Majesty's  Government  declares  that 
they  adhere  to  the  stipulations  of  the  treaty  of  October  29, 
1888,  and  that  they  agree  to  their  being  put  in  force.  The  free 
passage  of  the  canal  being  thus  guaranteed,  the  execution  of 
the  last  sentence  of  par,  I  as  well  as  par.  II  of  Article  8  of  that 
treaty  will  remain  in  abeyance."  These  paragraphs  refer  to 
a  watching  over  the  canal  with  regard  to  men-of-war  in  time 
of  war  and  peace  by  the  agents  of  the  signatory  powers.^ 

The  expression  neutralization  is  often  used  with  respect  to 
the  status  of  the  Suez  Canal  in  time  of  war.  But  this  term 
varies  in  use  and  meaning.  It  is  neutralized  in  the  sense  that 
no  acts  of  hostility  can  be  committed,  without  a  violation  of 
treaty,  within  its  limits  or  those  of  the  terminal  waters.  But 
it  is  not  neutralized  in  another  sense,  as  it  can  be  used  in  war 
time  for  passage  through  by  belligerents  for  any  warlike  ex- 
pedition whose  objective  is  exterior  to  the  canal.  It  is  not 
even  similar  to  marginal  territorial  waters  of  a  neutral,  as  these 
waters  have  no  limitations  as  to  time  of  arrival  and  departure. 
Certainly  it  is  not  like  neutralized  land  territory,  for  passing 
through  such  territory  is  denied.  It  is  sui  generis,  common  to 
all  vessels,  to  whom  warlike  operations  are  denied  while  passing 
through.  It  remains  to  be  seen  how  it  will  be  operated  when 
Great  Britain  becomes  a  belligerent  against  another  powerful 
naval  belligerent.  In  this  connection,  and  it  is  useful  as  a 
precedent  for  Panama,  we  must  remember  that,  in  1882,  Great 
1  Stockton's  "Naval  Manual,"  pp.  107-9. 


TERRITORIAL  JURISDICTION  OF  A  STATE  139 

Britain  occupied  the  canal  from  end  to  end  and  made  it  the 
base  of  warUke  operations  in  Egypt. 

73.  The  Panama  Canal. — As  to  the  Panama  Canal,  now 
completed  within  the  Canal  Zone  ceded  to  the  United  States 
for  that  purpose  by  the  republic  of  Panama,  its  status  differs 
from  the  Suez  Canal  or  any  other  canal  mentioned. 

In  the  first  place,  it  has  been  constructed  directly  by  the 
United  States  of  America,  under  the  auspices  of  the  general 
government,  in  territory  originally  foreign  but  now  held  ac- 
cording to  treaty  in  perpetuity.  On  account  of  the  existence 
of  a  previous  treaty  dealing  with  the  interoceanic  canal  and 
transit  across  the  American  isthmus,  connecting  North  and 
South  America,  and  generally  known  as  the  Clayton-Bulwer 
treaty,  a  relationship  existed  in  this  question  between  Great 
Britain  and  the  United  States.  This  treaty  between  the  two 
states  has  been  succeeded  by  another  treaty  on  the  same  sub- 
ject known  as  the  Hay-Pauncefote  treaty  of  1901  and  now  in 
force.  In  addition,  the  canal  question  is  governed  also  by  the 
treaty  between  the  United  States  and  the  republic  of  Panama, 
concluded  in  1903  and  proclaimed  after  ratification,  February 
26,  1904.  This  treaty  is  known  as  the  Hay-Bunau-Varilla 
treaty.  The  territory  through  which  the  canal  passes  may  be 
considered  as  being  affected  by  the  treaty  of  1846,  between  the 
United  States  and  Colombia,  still  in  force,  the  settlement  of 
the  questions  concerned  being  still  a  matter  of  negotiation  be- 
tv/een  the  two  countries. 

In  a  physical  sense  the  Panama  Canal  differs  from  other 
canals,  as  its  connection  is  more  direct  than  any  existing  canal 
between  the  two  great  oceans  of  the  world,  and  it  creates,  to  a 
large  extent,  new  sea  routes,  some  of  them  to  countries  which, 
though  governed  by  the  white  race,  are  but  imperfectly  devel- 
oped. In  a  military  sense  it  may  become  of  the  greatest  im- 
portance to  the  United  States,  while  commercially  it  opens 
exceptional  possibilities  for  sea  trade  and  intercourse. 

The  Clayton-Bulwer  treaty  was  the  first  treaty  negotiated 


140  STATES  IN  INTERNATIONAL  LAW 

which  governed  the  question  of  international  waterways  across 
the  American  isthmus.  It  was  formulated,  in  1850,  between 
Great  Britain  and  the  United  States,  and,  though  perpetual  in 
its  nature,  it  was  superseded  by  mutual  consent  by  the  Hay- 
Pauncefote  treaty  of  1901. 

The  preamble  of  the  Clayton-Bulwer  treaty  declared  that 
the  two  countries  desired  to  consolidate  their  friendship  by 
"setting  forth  and  fixing  in  a  convention  their  views  and  in- 
tentions with  reference  to  any  means  of  communication  by 
ship  canal  which  may  be  constructed  between  the  Atlantic  and 
Pacific  Oceans."  The  first  article  forbade  exclusive  control 
and  also  further  fortifications,  colonization,  and  occupation 
over  territory  likely  to  be  used  for  a  canal. 

In  case  of  the  construction  of  a  canal,  vessels  of  both  states 
were  to  be  exempt  from  blockade,  detention,  or  capture  within 
the  limits  of  the  canal  and  a  certain  distance  of  the  terminal 
waters.  The  neutrality  of  the  canal  was  to  be  guaranteed, 
and  it  was  to  be  forever  open  and  free.  The  eighth  article  de- 
clared that  a  general  principle  was  to  be  established  by  which 
the  protection  of  both  countries  was  extended  to  any  inter- 
oceanic  transit,  either  by  canal  or  railway. 

The  first  objection  to  the  treaty,  that  of  its  perpetuity,  was, 
in  general,  the  objections  that  pertain  to  all  perpetual  treaties; 
circumstances  change  in  time,  and  such  treaties  become  either 
of  doubtful  benefit  or  antagonistic  to  the  present  interests  of 
one  or  both  of  the  parties  concerned.  This  was  the  case  of 
this  treaty,  and  the  objections  to  the  treaty  as  it  stood  were 
very  ably  and  specifically  enumerated  by  Secretary  Blaine  in 
a  communication  to  Mr.  Lowell,  then  minister  to  Great  Britain, 
under  date  of  November  19,  1881.  In  this  communication  Mr. 
Blaine  states  the  following,  which  is  interesting  even  at  the 
present  time:  "Nor  does  the  United  States,"  he  says,  "seek 
any  exclusive  or  narrow  commercial  advantage.  It  frankly 
agrees  and  will  by  public  proclamation  declare  at  the  present 
time,  in  conjunction  with  the  republic  on  whose  soil  the  canal 


TERRITORIAL  JURISDICTION  OF  A  STATE  141 

may  be  located,  that  the  same  rights  and  privileges,  the  same 
tolls  and  obligations  for  the  use  of  the  canal  shall  apply  with 
absolute  impartiality  to  the  merchant  marine  of  every  nation 
on  the  globe."  ^ 

The  Hay-Pauncefote  treaty  provides  in  the  first  article  the 
agreement  that  this  treaty  should  supersede  the  Clayton- 
Bulwer  treaty.  In  the  second  article  it  is  agreed  that  the  canal 
may  be  constructed  under  the  auspices  of  the  government  of 
the  United  States  and  that,  subject  to  the  provisions  of  the 
present  treaty,  the  said  government  should  have  all  the  rights 
incident  to  such  construction,  as  well  as  the  exclusive  right  of 
providing  for  the  regulation  and  management  of  the  canal. 

The  following  rules  were  contained  in  the  third  article  of 
the  treaty: 

"l.  The  canal  shall  be  free  and  open  to  the  vessels  of  com- 
merce and  of  war  of  all  nations  observing  these  rules,  on  terms 
of  entire  equality,  so  that  there  shall  be  no  discrimination 
against  any  such  nation,  or  its  citizens  or  subjects,  in  respect 
of  the  conditions  or  charges  of  traffic  or  otherwise.  Such  con- 
ditions and  charges  of  traffic  shall  be  just  and  equitable. 

"2.  The  canal  shall  never  be  blockaded,  nor  shall  any  right 
of  war  be  exercised,  nor  any  act  of  hostility  be  committed 
within  it.  The  United  States,  however,  shall  be  at  liberty  to 
maintain  such  military  police  along  the  canal  as  may  be  neces- 
sary to  protect  it  against  lawlessness  and  disorder. 

"3.  Vessels  of  war  of  a  belligerent  shall  not  revictual  nor  take 
any  stores  in  the  canal  except  so  far  as  may  be  strictly  neces- 
sary; and  the  transit  of  such  vessels  through  the  canal  shall 
be  effected  with  the  least  possible  delay,  in  accordance  with  the 
regulations  in  force  and  with  only  such  intermission  as  may 
result  from  the  necessities  of  the  service. 

"  Prizes  shall  be  in  all  respects  subject  to  the  same  rules  as 
vessels  of  war  of  the  belligerents. 

"4.  No  belligerent  shall  embark  or  disembark  troops,  muni- 
>  Moore's  "Digest,"  vol.  Ill,  pp.  190,  191,  193. 


142  STATES  IN  INTERNATIONAL  LAW 

tions  of  war,  or  warlike  materials  in  the  canal,  except  in  case 
of  accidental  hinderance  of  the  transit;  and  in  such  case  the 
transit  shall  be  resumed  with  all  possible  despatch. 

"5.  The  provisions  of  this  article  shall  apply  to  waters  ad- 
jacent to  the  canal,  within  three  miles  of  either  end.  Vessels 
of  war  of  a  belligerent  shall  not  remain  in  such  waters  longer 
than  twenty-four  hours  at  any  one  time,  except  in  case  of  dis- 
tress, and  in  such  case  shall  depart  as  soon  as  possible;  but  a 
vessel  of  war  of  one  belligerent  shall  not  depart  within  twenty- 
four  hours  from  the  departure  of  a  vessel  of  war  of  the  other 
belligerent. 

"6.  The  plant,  establishment,  buildings,  and  all  work  neces- 
sary to  the  construction,  maintenance,  and  operation  of  the 
canal  shall  be  deemed  to  be  part  thereof,  for  the  purpose  of 
this  treaty,  and  in  time  of  war,  as  in  time  of  peace,  shall  enjoy 
complete  immunity  from  attack  or  injury  by  belligerents  and 
from  acts  calculated  to  impair  their  usefulness  as  part  of  the 
canal." 

This  treaty  differs  from  both  the  Suez  Canal  convention  and 
the  Clayton-Bulwer  treaty  in  that  it  does  not  forbid  the  erec- 
tion or  maintenance  of  fortifications.  It  differs  from  both  also 
in  that  it  does  not  provide  for  war  between  the  contracting 
parties  or  between  the  United  States  and  other  powers,  the 
dual  guarantee  by  the  Clayton-Bulwer  treaty  being  replaced 
by  a  single  assumption  by  the  United  States.  It  has  no  pro- 
vision for  the  adherence  of  any  other  powers,  either  in  the 
treaty  or  the  guarantee.^ 

The  first  draught  of  the  Hay-Pauncefote  treaty  was  not  rat- 
ified by  the  Senate  of  the  United  States,  and  while  the  second 
draught  was  being  arranged  between  the  United  States  and 
Great  Britain  the  discussion  between  the  negotiators  included 
the  subject  of  the  fortification  of  the  canal  by  the  United 
States.  Upon  this  question  Lord  Lansdowne,  then  the  British 
foreign  minister,  said  in  a  memorial  that  "as  to  this  (the 
1  "The  Status  of  Panama  Canal,"  etc.,  A.  J.  I.  L.,  H.  S.  Knapp. 


TERRITORIAL  JURISDICTION  OF  A  STATE  143 

fortification  question),  I  understand  that  by  the  omission 
of  all  reference  to  the  matter  of  defence  the  United  States 
Government  desires  to  reserve  the  power  of  taking  measures 
to  protect  the  canal,  at  any  time  when  the  United  States  may 
be  at  war,  from  destruction  or  damage  at  the  hand  of  an  enemy 
or  enemies.  On  the  other  hand,  I  conclude  that,  with  the  above 
exception,  there  is  no  intention  to  derogate  from  the  prin- 
ciples of  neutrality  laid  down  by  the  rules.  As  to  the  first  of 
these  propositions,  I  am  not  prepared  to  deny  that  contingen- 
cies may  arise  when,  not  only  from  a  national  point  of  view 
but  on  behalf  of  the  commercial  interests  of  the  whole  world, 
it  might  be  of  supreme  importance  to  the  United  States  that 
they  should  be  free  to  adopt  measures  for  the  defence  of  the 
canal  at  a  moment  when  they  were  themselves  engaged  in 
hostilities."^ 

The  necessity  for  defence,  founded  on  the  right  of  self- 
preservation,  chimes  in  with  the  remarks  quoted  above,  which 
are  also  applicable  to  the  Suez  Canal.  When  it  is  considered 
of  how  little  value  improvised  works  of  defence  would  be, 
hastily  constructed  for  the  moment,  full  justification  is  given 
to  the  action  of  the  United  States  in  erecting  permanent  forti- 
fications with  ordnance  of  large  calibre.  Too  much  is  involved 
to  trust  to  flimsy  works,  armed  and  equipped  with  such  guns 
as  may  be  at  hand,  at  such  a  distance  from  home  resources. 

74.  Hay-Bunau-Varilla  Treaty. — In  Article  II  of  the  treaty 
with  the  new  republic  of  Panama,  commonly  known  as  the 
Hay-Bunau-Varilla  treaty,  which  has  been  already  referred  to, 
Panama  grants,  not  cedes,  to  the  United  States  in  perpetuity, 
the  use,  occupation,  and  control  of  a  zone  of  land  under  water 
for  the  construction,  maintenance,  operation,  sanitation,  and 
protection  of  said  canal.  There  is  also  a  further  grant  in  per- 
petuity of  any  lands  or  waters  outside  of  the  zone  which  may 
be  found  necessary  and  convenient  for  the  purposes  just  men- 
tioned in  the  enterprise. 

>  Moore'a  "  Digest,"  vol.  Ill,  p.  215. 


144  STATES  IN  INTERNATIONAL  LAW 

Article  XVIII  states  that  "the  canal  when  constructed  and 
the  entrances  thereto  shall  be  neutral  in  perpetuity  and  shall 
be  opened  upon  the  terms  provided  by  Section  I,  Article  III 
of,  and  in  conformity  with  all  the  stipulations  of,  the  treaty 
entered  into  by  the  governments  of  the  United  States  and  Great 
Britain,  on  November  18,  1901  (Hay-Pauncefote  treaty)." 

Article  XXIII  reads:  "If  it  should  become  necessary  at 
any  time  to  employ  armed  forces  for  the  safety  or  protection 
of  the  canal  or  of  the  ships  that  make  use  of  the  same  or  the 
railways  and  auxiliary  works,  the  United  States  shall  have 
the  right  at  all  times  and  in  its  discretion  to  use  its  police 
and  its  land  and  naval  forces  or  to  establish  fortifications  for 
these  purposes." 

Article  XXV  reads:  "For  the  better  performance  of  the  en- 
gagements of  this  convention  and  to  the  end  of  the  efficient 
protection  of  the  canal  and  the  preservation  of  its  neutraUty, 
the  government  of  the  republic  of  Panama  will  sell  or  lease  to 
the  United  States  lands  adequate  and  necessary  for  naval 
or  coaling  stations  on  the  Pacific  coast  and  on  the  western 
Caribbean  coast  of  the  republic,  at  certain  points  to  be  agreed 
upon  with  the  President  of  the  United  States."^ 

The  two  treaties  which  have  just  been  given  in  part  cover 
the  external  relations  of  the  Panama  Canal  and  provide  for 
its  free  use  in  time  of  peace,  and  in  war  time  by  belligerents  in 
general;  it  does  not,  however,  include  in  these  belligerents  any 
state  at  war  with  the  United  States,  as  was  done  by  the  Suez 
Canal  convention  with  respect  to  Turkey.  It  really  puts  the 
Panama  Canal  in  the  same  status  as  a  fortified  port  of  a  neu- 
tral state,  so  far  as  its  use  and  the  length  of  stay  of  belligerent 
vessels  are  concerned.  Such  ports  can  be  used  in  common 
by  all  belligerent  vessels,  subject  to  restrictions  as  to  length 
of  stay  and  times  of  departure,  and  no  acts  of  hostilities  can  be 
performed  within  its  territorial  limits  when  it  is  neutral;  but 
the  United  States  has  the  means  of  defence,  when  a  belligerent, 
1  "Compilation  of  Treaties  in  Force,  1904,"  p.  609. 


TERRITORIAI.  JURISDICTION  OF  A  STATE  145 

against  the  enemy.  Its  fortifications  can  be  used,  if  necessary, 
to  prevent  any  violation  of  its  status  of  neutrality.  The  canal 
is  free  and  open  by  treaty  to  vessels  of  commerce  and  of  war  of 
all  nations  observing  the  specified  rules;  hence,  for  violation 
or  non-observance  of  the  rules  referred  to  such  vessels  can  be 
excluded  from  the  canal  by  the  agents  of  the  United  States. 

There  is  a  conflict  between  provisions  of  the  Hay-Bunau- 
Varilla  treaty  and  the  Hay-Pauncefote  treaty,  as  well  as  some 
of  the  provisions  of  the  treaty  of  1846  between  the  United 
States  and  the  republic  of  Colombia.  As  this  latter  conflict  is 
a  matter  of  present  negotiation  it  is  to  be  hoped  that  the 
questions  under  discussion  will  be  settled  satisfactorily  to  all 
countries.  The  principal  conflict  arises  from  the  guarantee 
conveyed  in  the  treaty  of  1846  for  the  sovereignty  of  Colombia 
on  the  Isthmus  of  Panama,  the  question  arising  from  the  rental 
due  to  Colombia  from  the  Panama  Railway  and  the  action  of 
the  United  States  in  connection  with  the  establishment  of  the 
republic  of  Panama. 

TOPICS  AND  REFERENCES 

1.  The  Right  of  a  State  to  Exclusive  Jurisdiction  over  Its  Own  Territory — 

Hershey,  "Essentials,"  159,  160,  233-5.  Oppenheim,  2d  ed.,  vol. 
I,  229-237.     Lawrence's  "Principles,"  4th  ed.,  139-147. 

2.  The  Right  to  Hold  and  Acquu-e  Property — 

Hall,  6th  ed.,  Atlay,  101-116.  H.  Taylor,  264-277.  Scott's 
"Cases,"  70-75. 

3.  Boundaries  of  States — 

Halleck,  vol.  I,  4th  ed..  Baker,  182-5.  Moore's  "Digest,"  vol.  I, 
615-621.     Wheaton's  "Elements,"  8th  ed.,  Dana,  274. 

4.  State  Servitudes — 

Phillimore,  "International  Law,"  3d  ed.,  I,  388-393.  Holland, 
"Jurisprudence,"  10th  ed.,  214-221.  Westlake,  "International 
Law,"  I,  141-2.     Wheaton,  8th  ed.,  Dana,  sees.  192,  194-6,  202. 

5.  Territorial  Waters — The  Marine  League — 

Wheaton,  8th  ed.,  Dana,  255-272.  H.  Taylor,  293-9.  Walker, 
"Manual,"  sec.  17.     Vattel,  I,  sees.  287-290. 


146  STATES  IN  INTERNATIONAL  LAW 

6.  Straits — 

Wheaton,  8th  ed.,  Dana,  271-3.  H.  Taylor,  281-9.  Snow's 
"Cases,"  41-65. 

7.  Rivers — 

Phillimore,  I,  sees.  155-171.  Whea,ton,  8th  ed.,  Dana,  274-288. 
Moore's  "Digest,"  sees.  130-1. 

8.  Interoceanic  Canals — Suez  Canal — 

Cromer,  "Modern  Egypt,"  II,  chap.  XLVII,  382-7.  Lawrence, 
"Essays,"  etc.,  2d  ed.,  Essay  II,  41,  etc.  Penfield,  "Present-Day 
Egypt,"  184-217. 

9.  Panama  Canal —  ' 

Johnson,  "Four  Centuries  of  Panama  Canal,"  1906.  List  of  books 
and  articles  on  "Interoceanic  Canals  and  Railway  Routes," 
published  by  Library  of  Congress,  1900.  Hershey,  "  Essentials," 
208-212. 

10.  Governing  Treaties — 

Compilation  of  United  States  Treaties  in  Force,  etc.,  1904.  Law- 
rence's "Essays,"  2d  ed.,  Essay  III.  Henderson,  "American 
Diplomatic  Questions,"  65-201.  Moore's  "Digest,"  vols.  II  and 
III,  sec.  178,  336-371. 


CHAPTER  VIII 

THE  fflGH  SEAS.    IMMUNITIES  OF  FOREIGN  VESSELS  IN 

PORTS  AND  WATERS 

7S.  What  Is  Meant  by  the  High  Seas. — By  the  term  the 
high  seas,  in  municipal  and  international  law,  is  meant  all  that 
continuous  body  of  salt  water  in  the  world  which  is  navigable 
in  its  character  and  which  lies  outside  of  the  territorial  waters 
and  maritime  belts  of  the  various  countries.  This  great  extent 
of  salt  water  is  represented  by  the  five  great  oceans  and  the 
various  bodies  of  water  dependent  upon  and  connected  with 
them. 

The  oceans,  of  course,  represent  the  greater  part  of  the  open 
salt-water  area  of  the  world,  the  remainder  of  the  high  seas 
consisting  of  dependent  bodies  of  water,  like  the  Gulf  of  Mexico, 
the  Caribbean  Sea,  the  Mediterranean,  the  Black  Sea,  and 
others.  These  dependent  seas  have  often  still  other  dependent 
seas,  like  the  Adriatic  with  respect  to  the  Mediterranean,  and 
so  the  subdivisions  continue.  Even  the  enclosure  of  waters 
by  one  or  more  states  does  not  properly  remove  such  waters 
from  the  area  of  the  high  seas,  Hudson  Bay,  in  British  America, 
with  its  wide  entrances,  being  a  fair  example  of  that  nature.^ 

In  connection  with  international  law,  which  is  the  reigning 
law  upon  the  high  seas  outside  of  the  narrow  sphere  of  the 
vessel,  the  sea  bears  a  most  important  part,  both  in  peace  and 
war  time.  This  is  the  case  in  war  especially,  not  only  with 
regard  to  the  belligerents  concerned  therein  but  also  with  re- 
spect to  the  neutral  powers  and  their  vessels.* 

» Thomas  W.  Balch,  A.  J.I.L.,  vol.  VII,  no.  3. 
•Sfcockton'8  "Naval  Manual,"  pp.  78.  79. 

147 


148  STATES  IN  INTERNATIONAL  LAW 

76.  The  Freedom  of  the  High  Seas. — In  early  days,  in- 
cluding the  first  portion  of  the  Middle  Ages,  navigation  upon 
the  high  seas  was  free  to  the  world.  Definite  claims  to  parts 
of  the  high  seas  began,  however,  in  the  latter  part  of  the  Mid- 
dle Ages.  At  the  end  of  that  period  the  republic  of  Venice 
claimed  and  was  recognized  as  the  sovereign  of  the  Adriatic 
and  the  republic  of  Genoa  as  the  ruler  of  the  Ligurian  Sea. 
Portugal  claimed,  by  virtue  of  papal  decree,  to  be  the  sovereign 
over  the  whole  of  the  Indian  Ocean  and  of  the  parts  of  the 
Atlantic  Ocean  lying  south  of  Morocco.  The  Pope  of  Rome 
also  gave  to  Spain  the  authority  for  her  claim  over  the  Pacific 
Ocean  and  the  Gulf  of  Mexico.  Sweden  and  Denmark  claimed 
sovereignty  over  the  Baltic.  Great  Britain  claimed  and  at- 
tempted to  enforce  her  sovereignty  over  the  narrow  seas; 
that  is,  the  North  Sea  and  the  Atlantic  Ocean  from  the  North 
Cape  to  Cape  Finisterre. 

But  the  extravagant  assertions  of  Spain  and  Portugal  were 
not  submitted  to  by  the  French,  Dutch,  and  English  navi- 
gators, "and  when,  in  1680,  the  Spanish  ambassador  Mendoza 
lodged  a  complaint  with  Queen  Elizabeth  against  Drake  for 
having  made  his  famous  voyage  to  the  Pacific,  Queen  Eliza- 
beth answered  that  vessels  of  all  nations  could  navigate  on 
the  Pacific,  since  the  use  of  the  sea  and  the  air  was  common  to 
all,  and  that  no  title  to  the  ocean  could  belong  to  any  nation, 
since  neither  nature  nor  regard  for  the  public  use  permits  any 
possession  of  the  ocean."  ^ 

In  1609  Grotius  appeared  on  the  scene  with  his  treatise 
"Mare  Liberum,"  arguing  that  the  sea  cannot  be  under  the 
jurisdiction  of  the  state  because  it  cannot  be  held  in  posses- 
sion through  occupation,  and  consequently  it  is  free  from  the 
sovereignty  of  any  state.  This  work  of  Grotius  met  with  re- 
sponses from  writers  of  several  nations.  The  most  important 
answer  was  by  John  Selden,  written  in  1619  and  printed  in 
1635.  Selden  sought  to  establish  the  propositions:  "  1.  That 
^  Oppenheim,  2d  ed.,  I,  p.  318. 


THE  HIGH  SEAS  149 

the  sea  may  be  property.  2.  That  the  seas  which  washed  the 
shores  of  Great  Britain  and  Ireland  were  subject  to  her  sover- 
eignty even  as  far  as  the  northern  pole." 

So  fully  did  Charles  I  accept  the  arguments  of  Selden  that 
"he  instructed  Carleton,  the  British  ambassador,  to  complain 
to  the  states  general  of  the  Dutch  provinces  of  the  audacity 
of  Grotius  in  publishing  his  "Mare  Liber um,"  and  to  demand 
that  he  should  be  punished."^ 

In  spite  of  opposition  and  after  due  time  the  doctrines  of 
Grotius  prevailed,  ably  seconded,  as  he  was,  by  such  writers 
as  Bynkershoek,  Vattel,  G.  F.  de  Martens,  and  others,  until 
at  the  end  of  the  first  quarter  of  the  nineteenth  century  Great 
Britain  herself  became  a  champion  of  the  freedom  of  the  high 
seas.  When  Russia,  in  1821,  attempted  to  forbid  all  foreign 
vessels  from  approaching  the  shore-line  of  Russian  Alaska 
within  the  distance  of  one  hundred  Italian  miles,  both  the 
United  States  and  Great  Britain  protested,  and  Russia  gave 
up  her  claims  in  treaties  concluded  with  the  two  countries  in 
1824  and  1825. 

An  incidental  claim  to  jurisdiction  beyond  the  marine 
league  in  the  Bering  Sea  has  led  to  the  statement  that  the 
United  States  revived  the  Russian  claim  during  the  contro- 
versy in  regard  to  the  seal  fisheries  from  1886  to  1893. 

Though  this  claim  was  undoubtedly  used  by  some  of  the 
agents  and  oSicials  of  the  United  States  during  the  contro- 
versy, neither  the  secretary  of  state,  Mr.  Blaine,  nor  our  min- 
ister to  Great  Britain  sanctioned  this  argument.  The  main 
argument  of  the  United  States  was  that  the  seals  were  its 
property  and  that  the  consequent  right  of  protection  followed 
on  the  high  seas  and  elsewhere.  This  claim  was  founded  upon 
the  fact  that  the  seals  in  the  eastern  Bering  Sea  habitually  go 
to  the  Pribylov  Islands,  belonging  to  the  United  States,  for 
breeding  purposes,  leaving  there  to  go  into  the  high  seas  in 
search  of  food  and  returning  there  successively  each  year  for 

>  Phillimore,  3d  ed.,  I,  p.  258. 


150  STATES  IN  INTERNATIONAL  LAW 

the  establishment  of  their  harems.^  The  decision  of  the  court 
of  arbitration  in  this  controversy  was  against  the  United  States 
upon  all  points. 

In  concluding  this  narration,  it  may  be  stated  that  it  is  now 
an  accepted  rule  of  international  law  that  the  high  seas  are 
free  and  cannot  be  denied  to  the  use  of  all  nations  at  all  times. 
This  rule  is  based  largely  upon  the  necessity  of  absolute  free- 
dom of  intercourse  by  means  of  the  sea,  as  the  sea  is  becoming 
more  and  more  an  international  highway  and  less  and  less  an 
obstacle  for  international  communication. 

Besides  these  grounds,  there  is  the  traditional  one  also  that 
it  is  practically  impossible  to  retain  possession  of  the  high  seas 
by  permanent  occupation,  in  the  sense  that  territory  on  land 
is  so  occupied.  This  physical  control  naturally  increases  in 
its  possibility  as  the  approach  is  made  to  land  and  as  we  enter 
into  the  marginal  waters  of  a  state. 

For  the  purposes  of  mutual  safety  in  navigation  it  has  been 
found  necessary,  by  treaty  and  by  municipal  law,  to  agree 
upon  and  promulgate  certain  rules  for  the  avoidance  of  colli- 
sions, etc.,  upon  the  high  seas.  Besides  these  rules,  there  are 
others  enacted  by  Congress  that  are  applicable  to  seagoing 
vessels  of  all  nations  within  the  waters  of  the  United  States. 
This  is,  of  course,  purely  municipal  federal  law.  In  neither 
case  can  the  rules  be  called  international  law,  but  the  so-called 
international  rules  are  the  result  of  international  maritime 
conferences,  and  the  rules  in  regard  to  the  avoidance  of  col- 
lisions will  doubtless  continue  to  be  subject  to  such  conferences 
and  arrangements  as  the  changes  in  vessel  and  circumstances 
dictate.  The  same  can  be  said  as  to  proposed  arrangements 
for  greater  safety  in  case  of  shipwreck  and  for  communication 
between  vessels  by  wireless  and  other  means  of  signalling. 
The  great  opportunities  for  assistance  in  danger  have  been 
multiplied  to  such  an  extent  by  means  of  wireless  telegraph 
that  provisions  for  common  safety  will  necessarily  increase,  so 
»  Moore's  "Digest,"  I,  sec.  172. 


THE  HIGH  SEAS  151 

many  nationalities  being  interested  in  every  transoceanic 
steamship  carrying  large  and  heterogeneous  numbers  of  pas- 
sengers. 

In  cases  of  collisions  occurring  upon  the  high  seas  between 
vessels  of  different  and  foreign  states,  the  Supreme  Court  of 
the  United  States  has  decided  that  the  admiralty  courts  of  the 
United  States  may  take  jurisdiction.^ 

Great  Britain  in  her  admiralty  courts  also  claims  jurisdic- 
tion between  two  foreign  ships  if  the  guilty  ship  is  in  a  British 
port  at  the  time  an  action  is  entered  for  damages,  the  collision 
having  taken  place  on  the  high  seas. 

All  countries  have  freedom  of  fishing  upon  the  high  seas, 
which  right  is  limited  only  by  treaty  or  common  usage  founded 
on  treaty.  The  latter  would  include  servitudes.  Treaties  and 
regulations  have  been  negotiated  with  respect  to  the  fisheries 
in  the  North  Sea  between  various  maritime  countries  in  Europe. 
This  includes  a  suppression  of  the  liquor  trade  among  the 
fishing  vessels  in  that  sea.  As  a  result  of  the  Bering  Sea 
arbitration,  rules  were  drawn  up  with  regard  to  seal  fishing, 
but  they  have  never  been  generally  established  or  recognized. 
A  further  convention  was  agreed  to  bearing  on  this  sub- 
ject and  signed  at  Washington,  July  7,  1911.  A  treaty  for 
regulating  the  fisheries  in  the  vicinity  of  Iceland  was  signed 
in  June,  1901. 

So  far  as  telegraph  and  telephone  cables  are  concerned,  the 
high  seas  are  free  and  open  to  all,  but  no  state  is  required  to 
permit  their  entry  into  its  territorial  waters.  A  convention 
was  agreed  upon,  in  1884,  by  most  of  the  maritime  powers  for 
protecting  submarine  telegraph  cables  in  time  of  peace  upon 
the  high  seas;  this  does  not  restrict,  however,  the  action  of 
belligerents  in  time  of  war.^  Regulations  have  been  perfected 
as  to  wireless  telegraphy  on  the  high  seas,  so  that  ready  com- 
munication can  now  be  maintained  with  vessels  of  all  nations, 
in  time  of  peace,  as  to  dangers  seen  and  vessels  in  distress. 

*  Moore's  "  Digest,"  vol.  II,  p.  79.  *  Oppenheim,  2d  ed.,  I,  chap.  VIL 


152  STATES  IN  INTERNATIONAL  LAW 

77.  Jurisdiction  over  Vessels  upon  the  High  Seas  and 
Other  Waters. — In  order  to  carry  practically  into  effect  the 
jurisdiction  of  a  state  over  its  vessels  upon  the  high  seas,  it  is 
necessary  that  every  state  which  has  shipping  should  adopt 
regulations  under  which  its  national  vessels  can  legally  carry 
its  maritime  flag.  These  regulations  provide  for  certain  official 
documents  to  be  carried  by  the  privately  owned  vessels,  and 
which  give  the  vessel  an  identity  as  to  nationality,  ownership, 
its  personnel,  cargo,  and  destination.  If  a  vessel  carries  the 
flag  of  a  state  without  proper  authority  upon  the  high  seas, 
she  is  punishable  by  that  state  under  its  municipal  law.  When 
the  vessel  under  jurisdiction  of  a  state  has  its  proper  papers, 
it  is  authorized  to  carry  the  maritime  flag  and  is  under  the 
exclusive  domain  of  that  state  on  the  high  seas  and  within  the 
territorial  waters  of  the  state.  This  jurisdiction  includes  all 
the  persons  and  cargo  carried  by  it. 

The  flag  carried  by  such  privately  ^(yned  vessel  may  be  a 
special  flag  adopted  by  the  state  for  such  vessels  or  it  may  be 
the  flag  used  as  an  evidence  of  nationality  for  all  purposes, 
ashore  and  afloat.  With  the  United  States  there  is  but  one 
national  flag,  with  the  exception  of  the  flag  used  in  home  waters 
for  the  revenue  marine  service  and  the  flag  prescribed  under 
the  law  of  the  secretary  of  the  navy  for  regularly  enrolled 
yachts.  The  French  republic  has  a  common  flag  for  all  na- 
tional purposes,  while  other  countries  vary  as  to  their  mari- 
time and  other  national  ensigns. 

Vessels  of  war  are  the  representatives  of  the  sovereignty  of 
the  state  under  whose  flag  they  sail,  being  a  part  of  their  armed 
forces.  They  possess  this  character  with  its  immunities  upon 
the  high  seas  as  <vell  as  in  foreign  territory.  They  must,  how- 
ever, be  commissioned  and  manned  as  a  national  vessel  by  the 
state  and  under  the  command  of  a  regularly  enrolled  official, 
responsible  to  and  commissioned  by  the  state  as  a  member 
of  its  naval  or  marine  service. 

Other  public   vessels   consist   of   despatch   vessels,   school- 


THE  HIGH  SEAS  153 

ships,  transports,  store-ships,  colUers,  revenue  marine  vessels, 
lighthouse  tenders,  and  vessels  temporarily  or  permanently 
employed  in  the  service  of  the  state  for  public  purposes  only. 

Vessels  of  war  or  public  vessels  are  under  the  absolute  juris- 
diction of  their  state,  and  no  war  rights  of  belligerents  extend 
toward  them.  In  foreign  ports  and  waters  they  have  practi- 
cally an  immunity  from  the  local  jurisdiction. 

A  vessel  of  war  is  identified  by  her  external  appearance 
and  by  the  flag  and  pennant  which  should  be  carried.  As  a 
rule,  the  pennant  is  not  allowed  to  be  carried  by  other  than 
vessels  of  war.  The  armament  of  a  vessel  of  war  and  the  mili- 
tary appearance  of  her  personnel  are  also  evidences  of  her 
character.  The  commission  of  the  state  held  by  the  command- 
ing officer  of  a  man-of-war  is  conclusive  as  to  the  employment 
of  the  vessel  which  he  commands,  though  as  a  matter  of  courtesy 
the  declaration  of  the  commanding  oSicer  as  to  the  nature  of 
his  vessel  is  generally  accepted. 

The  civil  and  criminal  jurisdiction  on  the  high  seas  over  per- 
sons and  things  on  board  of  the  vessel  of  the  state  whose  flag  is 
carried  includes  foreign  persons  of  the  crew  or  passengers  then 
on  board,  this  being  a  similar  condition  with  respect  to  these 
aliens  as  that  existing  on  shore  with  regard  to  them  when  in 
the  jurisdiction  of  a  state. 

The  home  state  may  legislate  with  respect  to  its  citizens 
who  travel  in  foreign  vessels,  but  such  laws  cannot  be  enforced 
until  they  come  within  their  territorial  jurisdiction. 

The  right  of  citizens  of  the  United  States  to  acquire  property 
in  foreign  and  foreign-built  ships  has  been  held  to  be  a  na- 
tional right  independent  of  statutory  laws,  and  such  property 
is  as  much  entitled  to  protection  by  the  United  States  as  any 
other  property  of  a  citizen.  A  consular  officer  may  make 
record  of  a  bill  of  sale  in  such  cases  and  deliver  to  the  owner 
a  certificate  which  will  be  the  certificate  of  nationality  in  place 
of  the  usual  official  document  known  as  the  "register"  of  the 
vessel.     As  vessels  of  this  class  carrying  the  American  flag 


154  STATES  IN  INTERNATIONAL  LAW 

are  not  registered,  enrolled,  or  licensed,  they  cannot  import 
merchandise  from  foreign  ports  into  the  United  States  or  en- 
gage in  the  coasting-trade  of  the  United  States. 

While  they  have  the  right  to  fly  the  flag  of  the  United  States, 
it  is  not  required  that  the  officers  be  citizens  of  the  United 
States.  It  has  been  further  determined  as  to  this  anomalous 
type  of  vessel,  by  a  decision  of  the  United  States  Supreme 
Court,  that  a  British  subject  on  board  such  a  vessel  comes 
within  the  jurisdiction  of  a  United  States  consular  court, 
whenever  it  may  be  reached  in  the  case  of  a  crime  committed 
on  board. 

There  are  certain  exceptions,  in  time  of  war,  to  the  freedom 
of  the  high  seas  which  are  permitted  under  international  law 
as  agreed  upon  by  all  nations.  These  are  war  rights,  and  con- 
sist of  the  right  of  search  and  visit  of  neutral  vessels  and  that 
of  seizure  of  neutral  vessels  for  the  violation  of  blockade,  un- 
neutral service,  and  for  the  carriage  of  contraband  of  war. 
There  is  also  existing  the  right  of  capture  of  the  merchant 
vessel  of  an  enemy  as  well  as  of  the  hostile  man-of-war,  or 
public  vessel  of  an  enemy.  By  the  treaty  made  in  1890  by 
the  participating  powers  in  the  conference  of  Brussels,  called 
for  the  purposes  of  putting  an  end  to  the  African  slave-trade 
and  to  which  the  United  States  adhered  at  a  later  date,  a  right 
of  visit  and  search  of  vessels  in  time  of  peace  was  agreed  upon 
within  a  limited  area  or  zone  at  sea  on  the  eastern  coast  of 
Africa.  The  vessels,  susceptible  to  visit  and  search,  were  to 
be  of  less  than  five  hundred  tons  in  dimensions  and  of  a  peculiar 
type  and  rig.  The  French  alone  refused  to  ratify  this  right 
of  visit  and  search  in  the  maritime  zone  thus  established  by 
treaty,  but  the  results  from  this  agreement  seem  to  have  been 
very  effective  in  diminishing  this  trade.^ 

78.     Piracy. — "  Pirates  being  the  common  enemies  of  all 
mankind,"  says  Wheaton,  "  and  all  nations  having  an  equal 
interest  in  their  apprehension  and  punishment,  they  may  be 
1  Moore's  "Digest,"  II,  pp.  94S-951. 


THE  HIGH  SEAS  155 

lawfully  captured  on  the  high  seas  by  the  armed  vessels  of  any 
particular  state  and  brought  within  its  territorial  jurisdiction 
for  trial  in  its  tribunals.  .  .  .  "^ 

"  Piracy,  under  the  law  of  nations,  may  be  tried  and  pun- 
ished in  the  courts  of  justice  of  any  nation,  by  whomsoever  and 
wheresoever  committed;  but  piracy  so  termed  and  created  by 
municipal  statute  can  only  be  tried  by  that  state  within  whose 
territorial  jurisdiction  and  on  board  whose  vessels  the  offence 
thus  created  was  committed." 

To  constitute  piracy,  it  is  necessary,  of  course,  that  the 
offence  be  adequate  in  degree  and  that  the  persons  concerned 
should  have  acted  in  defiance  to  lawful  authority  and,  it  may 
be  said,  in  general,  with  a  view  to  plunder. 

By  the  law  of  nations,  the  proper  punishment  for  piracy  is 
death,  but  this  is  not  mandatory  upon  states  which  do  not 
award  death  as  a  penalty  for  crime.  It  may  be  said,  also,  that 
a  state  is  not  obliged  to  punish  piracy.  According  to  the 
German  law,  piracy  committed  by  foreigners  against  foreign 
vessels  cannot  be  punished  by  the  German  law  courts. 

Piracy  has  at  times  by  municipal  law,  on  the  other  hand, 
been  given  a  range  beyond  that  given  by  international  law. 
In  the  United  States  the  slave-trade  is  made  by  law  the  same 
offence  as  piracy,  and  the  law  as  to  piracy  includes  offences 
which  would  ordinarily  be  punished  on  shore  by  death. 

To  deliberately  burn,  cast  away,  or  destroy  any  ship  is 
piracy  under  the  statutes  of  the  United  States,  while  by  En- 
glish law  any  English  subject  who  transports  slaves  on  the  high 
seas  or  who  gives  aid  or  comfort  upon  the  sea  to  the  king's 
enemies  during  a  war  is  deemed  to  be  a  pirate. 

79.  Right  of  Approach. — As  an  accessory  to  the  right  to 
seize  piratical  vessels  or  vessels  violating  municipal  laws  on 
the  high  sea,  there  exists  what  has  \been  termed  the  right  of 
a  vessel  of  war  to  approach  another  vessel  to  determine  her 
character,  or,  in  shorter  terms,  the  "right  of  approach."  The 
'  Wheaton,  8th  ed.;  Dana's  ed.,  "Int.  Law,"  sec.  124. 


156  STATES  IN  INTERNATIONAL  LAW 

authority  for  the  exercise  of  this  right  with  us  was  the  decision 
of  the  United  States  Supreme  Court  in  the  case  of  the  Marianna 
Flora,  in  which  the  late  Commodore  Stockton  was  involved. 
The  Marianna  Flora  was  a  small  Portuguese  vessel  of  war 
which  was  met  upon  the  high  seas  by  Captain  Stockton,  then 
commanding  the  U.  S.  S.  Alligator,  cruising  in  general  search 
of  pirates.  While  approaching  the  Marianna  Flora,  which  re- 
sembled in  appearance  the  type  of  pirates  and  slavers  then  ex- 
isting, the  Marianna  Flora  opened  fire  upon  the  Alligator  on 
the  supposition  that  she  was  a  South  American  privateer, 
and  a  fight  ensued,  which  resulted  in  the  capture  of  the  Mari- 
anna Flora  and  her  rendition  to  port  for  trial,  etc.  She  iden- 
tified herself  as  a  Portuguese  vessel  of  war  and  claimed  damages 
for  the  action  of  the  commanding  officer  of  the  Alligator.  The 
matter  was  brought  before  the  United  States  Supreme  Court  in 
a  personal  suit;  the  court  decided  in  favor  of  Captain  Stockton 
upon  the  grounds  that,  first  of  all,  "ships  of  war  sailing  under 
authority  of  their  government,  instructed  to  arrest  pirates  and 
other  public  offenders,  may  approach  vessels  at  sea  to  ascertain 
their  character." 

Second,  that  "a  ship  under  such  circumstances  is  not  bound 
to  lie  by  and  await  approach,  but  she  has  no  right  to  fire 
at  an  approaching  cruiser  upon  a  mere  conjecture  that  she 
is  a  pirate,  especially  if  her  own  conduct  has  invited  the  ap- 
proach; and  if  this  be  done  the  cruiser  may  lawfully  repel 
force  by  force  and  capture  her."  The  third  point  decided 
was  that  "the  rule  of  territorial  waters  is  inapplicable  to 
ships  on  the  high  seas;  hence  a  ship  cannot  draw  around  her 
and  appropriate  so  much  of  the  ocean  as  she  may  deem  neces- 
sary for  her  protection  and  prevent  any  nearer  approach."^ 

80.  Papers  Carried  by  Merchant  Vessels.— In  general, 
merchant  vessels  are  required  by  the  municipal  laws  of  their 
various  states  to  carry  all  or  most  of  the  following  papers: 

1.  A  document  showing  the  right  to  carry  the  national  flag 
1  "The  Marianna  Flora,"  11,  Wheaton,  I. 


THE  HIGH  SEAS  157 

as  an  evidence  of  nationality.    This  is  generally  known  as  the 
register. 

2.  The  muster-roll  of  the  crew. 

3.  A  log-book  of  daily  occurrences. 

4.  A  manifest,  or  list  of  the  cargo.  This  is  not  absolutely 
necessary,  as  it  is  a  siunmary  of  the  bills  of  lading.  It  gener- 
ally indicates  position  of  storage. 

5.  A  bill  of  lading,  which  is  virtually  a  receipt  for  the  cargo, 
and  should  give  ports  of  shipment  and  discharge  and  the 
consignees. 

6.  A  charter  party  or  contract  between  the  owner  of  the 
vessel  and  some  other  party  by  which  the  vessel  is  hired  for 
some  certain  length  of  time. 

7.  The  shipping  articles.  The  contract  between  the  master 
and  seamen,  signed  by  both  parties. 

8.  Invoices  of  goods,  with  account  of  the  nature  of  the  goods. 

9.  Bill  of  health.  As  this  states  to  what  port  the  ship  is 
bound,  it  checks  other  papers. 

10.  Clearance,  which  is  a  certificate  that  permission  to  sail 
has  been  given.^ 

In  discussing  the  question  of  the  high  seas,  it  may  be  said 
that  a  vessel  violating,  by  means  of  boats  or  craft  proceeding 
from  and  belonging  to  the  vessel,  any  municipal  law  within 
the  marginal  waters  of  a  state  is,  by  the  best  authorities,  held 
to  be  liable  for  such  violation,  even  if  the  vessel  herself  is  in- 
disputably upon  the  high  seas  and  outside  of  the  marine  league. 

In  the  case  of  the  British  sealer  Araunah,  which  was  seized 
by  Russian  authority,  in  1888,  in  the  Bering  Sea,  it  was  aflBrmed 
that  the  crew  of  the  vessel  was  carrying  on  operations  against 
seals  in  canoes  within  a  half  of  a  mile  from  Russian  territory, 
although  the  Araunah  was  herself  outside  of  the  maritime  belt. 
Lord  Salisbury,  then  British  foreign  minister,  decided  that 
this  action  in  violation  of  Russian  law  warranted  her  seizure 
and  confiscation. 

» Stockton's  "Naval  Manual,"  p.  99. 


158  STATES  IN  INTERNATIONAL  LAW 

By  the  act  of  Congress  of  1856,  when  any  citizen  of  the 
United  States  discovers  and  works  a  deposit  of  guano  on  any 
rock  or  island,  not  within  the  jurisdiction  of  any  other  state 
and  not  occupied  by  any  foreign  citizen  or  subject,  and  occupies 
the  island,  it  may  be  considered  as  territory  of  the  United 
States.  Such  islands  and  rocks,  however,  are  not  made  a 
part  of  the  United  States,  and  all  offences  committed  thereupon 
and  in  its  adjacent  waters  are  held  as  being  committed  on  the 
high  seas  and  should  be  punished  accordingly.^ 

8i.  Immunities  of  Foreign  Vessels  of  War  in  Ports  and 
Waters. — A  port  of  entry  for  the  free  use  of  men-of-war  and 
merchant  vessels  and  for  commercial  purposes  in  connection 
with  them  is  created  by  municipal  law.  A  foreign  vessel  can 
by  the  comity  of  nations  take  refuge  and  anchor  in  the  case 
of  bad  weather,  as  a  matter  of  safety,  in  any  bay  or  harbor 
of  a  foreign  jurisdiction,  even  where  entrance  to  a  port  is  gen- 
erally denied  to  such  visits  and  confined,  as  in  China  and  Japan, 
to  what  are  known  as  treaty  ports. 

There  are  certain  ports  which  men-of-war  or  other  vessels 
are  denied  the  use  of,  in  part  or  in  whole  or  in  peace  or  war,  for 
military  reasons  alone.  In  other  ports,  for  military  reasons, 
there  are  limits  imposed  as  to  the  number  of  foreign  war  ves- 
sels to  be  allowed  at  any  one  time,  of  any  one  nation,  in  the 
port.  Examples  of  this  latter  kind  will  be  found  as  to  Con- 
stantinople in  Turkey,  Vladivostok  in  Siberia,  and  the  New 
Harbor  of  Singapore. 

No  foreign,  national,  or  privately  owned  vessel  in  time  of 
peace  or  war  is  permitted  to  visit,  except  by  special  authority 
of  the  United  States  Navy  Department  in  each  case,  the  ports 
of  Pearl  Harbor  in  the  Hawaiian  Islands,  Subig  Bay  in  the 
Philippines,  Guam,  Great  Harbor,  Culebra,  the  Guanta- 
namo  Naval  Station,  Cuba,  the  Dry  Tortugas,  Florida,  and 
Kiska  in  the  Aleutian  Islands. 

As  a  rule,  however,  where  there  are  no  express  prohibitions, 
the  ports  of  one  state  are  considered  to  be  open  to  the  public 

1  Brightley's  "Digest,"  p.  301. 


THE  HIGH  SEAS  159 

and  privately  owned  vessels  of  every  other  nation  with  whom 
it  is  at  peace. 

In  the  case  of  the  Exchange,  the  decision  of  Chief  Justice 
Marshall  of  the  Supreme  Court  of  the  United  States  gives 
sound  and  well-defined  reasons  for  the  exemption  of  men-of- 
war  from  the  general  jurisdiction  of  the  state  in  which  the  port 
is  situated.  Such  vessels  are  exempt  from  the  jurisdiction  of 
the  local  tribunals  and  authorities,  whether  they  enter  the 
ports  under  an  express  permission,  stipulated  by  treaty,  or  a 
permission  implied  from  the  absence  of  prohibition. 

The  Exchange  had  originally  belonged  to  an  American  cit- 
izen but  had  been  seized  and  confiscated  at  St.  Sebastian,  in 
Spain,  and  converted  into  a  public  armed  vessel  by  the  Em- 
peror Napoleon  in  1810,  and  upon  her  arrival  in  Philadelphia 
was  claimed  by  her  original  owner.  Chief  Justice  Marshall 
said :  "  The  world  being  composed  of  distinct  sovereignties, 
possessing  equal  rights  and  equal  independence,  whose  mutual 
benefit  as  promoted  by  intercourse  with  each  other  and  by 
an  interchange  of  those  good  oflBces  which  humanity  dictates 
and  its  wants  require,  all  sovereigns  have  consented  to  a  re- 
laxation in  practice,  under  certain  peculiar  circumstances,  of 
that  absolute  and  complete  jurisdiction  within  their  respective 
territories  which  sovereignty  confers.  This  consent  might,  in 
some  instances,  be  tested  by  common  usage  and  by  common 
opinion  growing  out  of  that  usage.  .  .  ." 

"  It  is  impossible  to  conceive,"  said  Vattel,  "  that  a  prince 
who  sends  an  ambassador  or  any  other  minister  can  have 
any  intention  of  subjecting  him  to  the  authority  of  a  foreign 
power.  .  .  .  Equally  impossible  was  it  to  conceive  that  a 
prince  who  stipulates  a  passage  for  his  troops  or  an  asylum  for 
his  ships  of  war  in  distress  should  mean  to  subject  his  army 
or  his  navy  to  the  jurisdiction  of  a  foreign  sovereign.  And  if 
this  could  not  be  presumed,  the  sovereign  of  the  port  must  be 
considered  as  having  conceded  the  privilege  to  the  extent  in 
which  it  must  have  been  understood  to  be  asked.  .  .  . 

"  A  clear  distinction  is  to  be  drawn  between  the  rights  ac- 


160  STATES  IN  INTERNATIONAL  LAW 

corded  to  private  individuals  or  private  trading  vessels  and 
those  accorded  to  public  armed  vessels  which  constitute  a 
part  of  the  military  force  of  the  nation.  .  .  .  The  situation  of 
a  public  armed  vessel  is,  in  all  respects,  essentially  different; 
she  constitutes  a  part  of  the  military  force  of  her  nation,  acts 
under  the  immediate  and  direct  command  of  the  sovereign, 
is  employed  by  him  on  national  subjects;  he  has  many  and 
powerful  motives  for  preventing  those  objects  from  being  de- 
feated by  the  interference  of  a  foreign  state;  such  interference 
cannot  take  place  without  seriously  affecting  his  power  and 
dignity.  The  implied  license,  therefore,  under  which  such 
vessel  enters  a  friendly  port  may  reasonably  be  construed,  and 
it  seems  to  the  court  should  be  construed,  as  containing  an 
exemption  from  the  jurisdiction  of  the  sovereign  within  whose 
territory  she  claims  the  rights  of  hospitality."^ 

Besides  the  vessel  itself,  the  immunity  of  a  man-of-war  is 
extended  to  its  boats,  tenders,  rafts,  and  other  appurtenances. 
The  ship  must,  however,  respect  the  administrative  and  sani- 
tary rules  of  the  port,  such  as  to  pilots  when  used,  to  places 
and  methods  of  anchoring,  regulations  for  quarantine,  landing- 
places,  and  the  disposal  of  refuse,  etc.  In  case  of  war,  the  for- 
eign vessel  is  held  to  observe  the  neutrality  of  the  port. 

A  vessel  of  war,  according  to  the  best  authorities,  is  exempt 
from  the  visitation  and  search  of  the  ofl5cials  of  the  customs  of 
the  foreign  port.  By  the  regulations  of  the  United  States 
navy,  commanding  officers  are  strictly  forbidden  to  allow  any 
examination  whatsoever  of  the  ships  or  boats  under  their 
command  by  foreign  officers  of  the  customs. 

They  are  also  forbidden  to  permit  any  ship  of  the  navy  under 
their  command  to  be  searched  by  any  person  representing  a 
foreign  state,  nor  are  any  of  the  officers  or  crew  to  be  taken 
out  of  her  so  long  as  they  have  the  power  to  resist.  If  force 
is  used  for  such  purpose  it  must  be  repelled.^ 

1  "The  Exchange,"  7  Cranch  135,  and  Scott's  "Cases." 
»  "U.  S.  Navy  Regulations,  1913,"  sees.  2045,  2046,  2047. 


THE  HIGH  SEAS  161 

Lampredi,  a  distinguished  Italian  authority,  in  referring  to 
the  immunity  of  a  vessel  of  war  in  a  foreign  port,  says:  "Such 
a  ship  of  war  cannot  exist  and  be  governed  without  the  per- 
petual duration  of  military  command,  which  consequently 
continues  to  be  exercised  in  all  of  its  extent  within  the  vessel, 
more  in  virtue  of  the  concession  of  the  prince  who  receives  the 
ship  than  from  any  right  on  the  part  of  the  captain,  much  less 
in  virtue  of  any  territorial  right."  ^ 

As  expressed  above,  the  commanding  officer  of  a  vessel  of 
war  retains,  of  course,  his  usual  authority  to  maintain  order 
and  discipline  and  to  establish  the  necessary  tribunals  to 
punish  offences  committed  on  board  or  on  shore  by  persons 
under  his  command,  in  violation  of  the  laws  or  discipline  of 
the  naval  service  of  his  country.  It  is  not  legal,  however,  in 
the  United  States  navy  to  have  such  courts  convene  or  hold 
session  on  shore  in  foreign  territory.  In  case  a  crime  is  com- 
mitted on  board  a  vessel  of  war,  by  a  person  or  persons  not 
belonging  to  the  ship  or  the  naval  service  of  his  country,  the 
commanding  officer  may,  with  propriety,  deliver  the  parties 
concerned  to  the  local  authorities.  If  the  offender  and  injured 
person  are  both  citizens  of  the  state  in  which  the  port  is  situ- 
ated, it  is  his  duty  in  ordinary  cases  to  deliver  the  criminal  to 
the  local  authorities. 

As  to  ordinary  criminals  seeking  to  escape  arrest  and  pun- 
ishment for  crimes  committed  on  shore  by  taking  refuge  on 
board  foreign  vessels  of  war,  it  is  wrong  to  harbor  them,  whether 
they  are  of  the  nationality  of  the  port  or  of  the  vessel  of  war. 
By  usage,  this  privilege  of  refuge  may  be  said  to  be  confined 
to  fugitive  slaves  or  persons  who  are  pursued  for  political 
offences  alone.  The  surrender  and  denial  of  refuge  is  at  the 
discretion  alone  of  the  commanding  officer.  This  is  especially 
the  case  if  the  person  concerned  has  reached  the  ship;  he  cannot 
be  taken  out  without  the  order  or  permission  of  the  command- 
ing officer.  Under  no  circumstances  have  the  local  authorities 
'  Lampredi,  "Tratt.  del  Comm.,"  chap.  X,  p.  1. 


162  STATES  IN  INTERNATIONAL  LAW 

the  right  of  seizure  or  arrest  on  board  foreign  vessels  of  war. 
If  delivery  is  refused,  further  proceedings  must  be  by  means 
of  diplomatic  channels. 

82.  Immunity  from  Arrest  When  Asylum  Is  Sought  on 
Board  Vessels  of  War. — Under  the  general  rule  of  international 
law  and  courtesy  it  is  considered  wrong  to  offer  or  afford  an 
asylum  to  a  criminal  or  to  a  person  charged  solely  with  a  crime 
against  the  state  in  whose  friendly  waters  a  vessel  of  war  hap- 
pens to  be  for  the  time.  If,  however,  a  criminal  of  any  kind 
succeeds  in  getting  on  board  a  foreign  vessel  of  war,  he  cannot 
be  apprehended  or  followed  on  board  by  the  police  or  local 
authorities.  The  commanding  officer  has  a  right  to  judge  for 
himself  whether  the  crime  charged  as  non-political  is  so  or 
is  only  used  as  a  pretext  to  prevent  asylum  being  granted  to  a 
person  in  flight  for  his  life  on  account  of  his  political  acts. 

The  regulations  of  the  United  States  navy  read  as  fol- 
lows upon  this  subject:  "The  right  of  asylum  for  political 
or  other  refugees  has  no  foundation  in  international  law. 
In  countries,  however,  where  frequent  insurrections  occur 
and  constant  instability  of  government  exists,  usage  sanc- 
tions the  granting  of  asylum;  but  even  in  the  waters  of 
such  countries,  officers  should  refuse  all  applications  for  asylum 
except  when  required  by  the  interests  of  humanity  in  extreme 
or  exceptional  cases,  such  as  the  pursuit  of  a  refugee  by  a 
mob.  Officers  must  not,  directly  or  indirectly,  invite  refugees 
to  accept  asylum."^ 

It  is  hardly  necessary  to  add  that  a  rigid  impartiality  should 
prevail  in  all  such  cases  between  political  parties,  and  that 
refugees  granted  asylum  should  not  be  allowed  to  open  nor 
maintain  communication  with  the  shore  for  political  or  any 
other  purpose. 

In  former  times,  when  slavery  existed  in  countries  that  were 
classed  as  enlightened,  it  was  customary  to  surrender  fugitive 
slaves  who  had  sought  refuge  on  board  vessels  of  war.  This 
»"U.  S.  Navy  Regulations,  1913,"  Art.  344. 


THE  HIGH  SEAS  163 

was  urged  as  a  policy  of  the  United  States  in  the  earlier  days 
of  the  republic.  Since  slavery  is  now  practically  abolished  by 
all  members  of  the  family  of  nations,  the  right  of  such  slaves  to 
refuge  and  freedom  has  become  the  usage.  By  Article  28  of 
the  general  act  of  the  Brussels  conference  relative  to  the  African 
slave  trade,  signed  July  2,  1890,  and  ratified  by  the  United 
States  and  most  of  the  civilized  states,  it  is  agreed  that  any 
slave  who  may  have  taken  refuge  on  board  a  ship  of  war  flying 
the  flag  of  one  of  the  signatory  powers  shall  be  immediately 
and  definitely  freed.  Such  freedom,  however,  shall  not  with- 
draw him  from  the  competent  jurisdiction  if  he  has  committed 
a  crime  or  offence  at  common  law. 

Before  closing  this  portion  of  the  subject  which  deals  with 
the  conduct  and  privileges  and  obligations  of  the  oflBcers  and 
men  of  a  man-of-war  in  foreign  ports,  it  is  well  to  give  an 
article  of  the  "United  States  Navy  Regulations"  upon  the  sub- 
ject of  their  dealings  with  foreigners  when  in  foreign  ports. 

The  commander-in-chief  of  a  fleet,  or  in  his  absence  the 
commanding  officer,  is  directed  to  "impress  upon  all  oSicers 
and  men  that  when  in  foreign  ports  it  is  their  duty  to  avoid 
all  possible  causes  of  offence  to  the  authorities  or  inhabitants; 
that  due  deference  must  be  shown  by  them  to  the  local  laws, 
customs,  ceremonies,  and  regulations;  that  in  all  dealings  with 
foreigners  moderation  and  courtesy  should  be  displayed,  and 
that  a  feeling  of  good-will  and  mutual  respect  should  be  cul- 
tivated." ^ 

"No  officer  or  man  can  be  allowed  to  violate  the  jurisdiction 
on  shore  by  arresting  or  attempting  to  arrest  a  deserter  or 
straggler  from  his  vessel.  If  any  oflacer  or  member  of  the  crew 
while  on  shore  commits  an  offence  against  the  laws  of  the 
country,  the  local  authorities  have  jurisdiction  over  such  per- 
sons while  they  are  on  shore  and  may  cause  them  to  be  arrested 
while  there  and  to  be  tried  and  punished  in  accordance  with 
the  laws  of  the  foreign  state.  The  commanding  oflBcer  of  the 
'Stockton's  "Manual,"  pp.  63-65. 


164  STATES  IN  INTERNATIONAL  LAW 

vessel,  or  the  admiral  if  he  should  be  present,  should  be  at 
once  informed  of  the  arrest  and  the  causes  which  led  to  it,  so 
that  either  he  or  the  diplomatic  or  consular  agents  of  his  gov- 
ernment may  procure  the  return  of  the  person  accused  to  his 
vessel  or  be  enabled  to  observe  the  manner  of  treatment  and 
trial.  If  the  offender,  however,  escapes  to  his  vessel  he  cannot 
be  apprehended  by  the  local  authorities;  but  the  commanding 
officer  can,  if  he  sees  fit,  without  loss  of  dignity  or  prestige, 
surrender  the  offender  for  trial  and  punishment  by  the  local 
courts,  or  the  matter  can  be  left  to  the  usual  diplomatic  chan- 
nels, as  mentioned  above. 

"It  must  not  be  understood,  however,  that  this  doctrine  of 
the  immunity  of  a  ship  of  war  goes  so  far  as  to  deprive  a  state 
of  all  power  over  the  acts  of  a  foreign  ship  of  war.  Entrance 
into  the  harbors  of  a  state  may  be  denied  to  any  ship  refusing 
to  respect  the  local  laws;  her  stay  may  be  limited;  she  may  be 
ordered  to  depart,  and,  if  necessary,  force  may  be  used  to  ex- 
pel her,  as  in  the  case  of  a  diplomatic  agent  or  even  a  sover- 
eign. Such  expulsion  is  provided  for  in  Section  5288  of  the 
Revised  Statutes  of  the  United  States,  in  which  the  President 
is  empowered  to  use  for  this  purpose  the  land  and  naval  forces 
of  the  United  States,  or  the  militia  thereof."^ 

"  Finally,"  as  Hall  says,  "  the  immunities  of  a  vessel  of  war 
belong  to  her  as  a  complete  instrument,  made  up  of  vessel 
and  crew  and  intended  to  be  used  by  the  state  for  specific 
purposes;  the  elements  of  which  she  is  composed  are  not  ca- 
pable of  separate  use  for  those  purposes;  they  consequently  are 
not  exempted  from  the  local  jurisdiction.  If  a  ship  of  war  is 
abandoned  by  her  crew  she  is  merely  property;  if  members  of 
her  crew  go  outside  the  ship  or  away  from  her  tenders  or  boats, 
they  are  liable  in  every  respect  to  the  territorial  jurisdiction. 
Even  the  captain  is  not  considered  exempt  in  respect  of  acts 
not  done  in  his  capacity  of  agent  of  the  state.  "^ 

In  1871  Rear-Admiral  Boggs,  U.  S.  N.,  commanding  the 

1  F.  Snow,  ed.  by  Stockton,  p.  24.  2  Hall,  6th  ed.,  p.  196. 


THE  HIGH  SEAS  165 

European  fleet,  refused  to  give  up  certain  persons  on  board  a 
vessel  of  his  command  who  were  charged  by  the  ItaKan  Govern- 
ment with  larceny.  Secretary  Fish,  while  observing  that  any 
person  attached  to  a  foreign  man-of-war  was  liable  to  arrest 
on  shore  for  any  offence  committed  there,  said:  "In  the  event 
that  a  person  on  board  the  foreign  ship  should  be  charged  with 
a  crime,  for  the  commission  of  which  he  would  be  liable  to  be 
given  up,  pursuant  to  the  extradition  treaty,  the  commander 
of  the  vessel  may  give  him  up  if  such  proof  of  the  charge  should 
be  produced  as  the  treaty  may  require. 

"  In  such  case,  however,  it  would  always  be  advisable  to 
consult  the  nearest  minister  of  the  United  States.  This  was 
done  in  this  instance,  and  the  decision  of  Mr.  Marsh  that  the 
persons  were  not  liable  to  be  given  up,  pursuant  to  the  treaty 
with  Italy,  is  approved  by  the  department." 

"  On  January  17,  1879,  the  United  States  frigate  Constitu- 
tion went  ashore  on  the  English  coast,  having  on  board  at  the 
time  a  cargo  of  machinery  belonging  to  individuals  and  intended 
for  the  Paris  exhibition.  She  was  pulled  off  by  tugs.  The 
owners  of  one  of  them,  being  dissatisfied  with  the  amount  of 
remuneration  offered  him,  brought  an  action  for  salvage  and 
applied  for  warrants  for  the  arrest  of  the  ship  and  cargo.  The 
court  refused  to  issue  the  warrant,  Sir  Robert  Phillimore,  who 
rendered  the  decision,  saying  that  *  ships  of  war  belonging  to 
a  nation  with  whom  this  country  is  at  peace  are  exempt  from 
the  civil  jurisdiction.'"^ 

"A  midshipman  of  the  U.  S.  S.  Mohican,  who  had  gone  on 
shore  at  the  port  of  St.  Louis  in  Maranham,  Brazil,  was  arrested 
and  taken  before  the  chief  of  police  for  having  fired  five  shots 
from  his  pistol  in  the  streets  of  the  city  at  one  of  his  boat's 
crew,  who  had  attempted  to  desert.  On  learning  his  official 
and  national  character  the  chief  of  police  discharged  him, 
calling  his  attention  to  his  disregard  of  the  laws  of  the  land 
and  the  safety  of  the  people  in  the  streets  and  warning  him 
1  Moore's  "Digeat,"  vol.  II,  p.  579. 


166  STATES  IN  INTERNATIONAL  LAW 

against  a  repetition  of  the  offence.  The  commanding  oflBcer 
of  the  Mohican  requested  the  United  States  consul  to  make  a 
complaint  to  the  governor  of  Maranham  against  the  chief  of 
police  for  his  expressions.  The  case  was  then  presented  by 
the  consul  to  the  United  States  minister  at  Rio,  Mr.  James 
Watson  Webb,  who  declined  to  bring  it  to  the  attention  of  the 
government  of  Brazil  but  referred  it  to  our  Department  of 
State.  The  State  Department  replied  that  the  act  of  the 
midshipman  'in  using  a  pistol  at  a  deserter  in  a  street  of 
Maranham  was  a  breach  of  the  peace,  offensive  to  the  dignity 
of  Brazil,  which  the  government  of  that  country  may  well 
expect  the  United  States  to  disallow  and  censure.'"^ 

"  Besides  men-of-war,  other  public  vessels,  such  as  trans- 
ports, colliers,  auxiliary  vessels,  surveying  vessels,  and  vessels 
fitted  out  for  scientific  work  by  the  government,  are,  to  the 
extent  that  is  required  by  the  service  of  the  state  owning  them, 
exempt  from  the  local  jurisdiction  of  the  port.  In  the  case  of 
the  Parlement  Beige,  a  mail  packet,  the  property  of  the  King 
of  Belgium,  carrying  his  pennant  and  commanded  by  officers 
of  the  Royal  Belgian  navy,  which  had  been  assimilated  by  a 
special  treaty  to  a  man-of-war,  a  decision  in  the  matter  of  col- 
lision was  given  in  1878  by  Lord  Justice  Brett,  of  the  English 
Court  of  Appeals,  to  the  effect :  '  That  as  a  consequence  of 
the  absolute  independence  of  every  sovereign  authority  and 
the  international  comity  which  induces  every  sovereign  state 
to  respect  the  independence  of  every  other  sovereign  state, 
each  and  every  one  declines  to  exercise  by  means  of  its  courts 
any  of  its  territorial  jurisdiction  over  the  person  of  any  sover- 
eign or  ambassador  of  any  other  state,  or  over  the  public  prop- 
erty of  any  state  which  is  destined  to  its  public  use,  or  over  the 
property  of  any  ambassador,  though  such  sovereign  ambassador 
or  public  property  be  within  its  territory  and  therefore,  but 
for  the  common  agreement,  subject  to  its  jurisdiction.'"'^ 
"  In  the  case  of  the  British  steamer  Tartar,  chartered  by  the 
»  Moore's  "  Digest,"  vol.  II,  p.  590.  « Scott's  "  Cases,"  p.  222. 


THE  HIGH  SEAS  167 

government  of  the  United  States  as  a  transport  in  its  military 
service,  the  position  was  taken  by  the  State  Department  that 
while  she  was  so  employed  she  was  entitled  to  be  treated  in 
British  ports  as  a  troop-ship  of  a  friendly  power  and,  hence, 
exempt  from  the  local  regulations  as  to  the  number  of  passen- 
gers which  vessels  might  carry."  ^ 

83.  Status  of  Merchant  Vessels  in  Foreign  Ports. — Chief 
Justice  Waite,  in  his  decision  in  the  Wildenhus  case,  says: 

"It  is  part  of  the  law  of  civilized  nations  that  when  a 
merchant  vessel  of  a  country  enters  the  ports  of  another  for 
the  purposes  of  trade,  it  subjects  itself  to  the  law  of  the  place 
to  which  it  goes,  unless  by  treaty  or  otherwise  the  two  coun- 
tries have  come  to  -^ome  different  understanding  or  agreement; 
for,  as  was  said  by  Chief  Justice  Marshall  in  the  case  of  the 
Exchange,  it  would  be  obviously  inconvenient  and  dangerous 
to  society  and  would  subject  the  laws  to  continual  infraction 
and  the  government  to  degradation  if  such  .  .  .  merchants 
did  not  owe  temporary  and  local  allegiance  and  were  not 
amenable  to  the  jurisdiction  of  the  country,  and  the  English 
judges  have  uniformly  recognized  the  rights  of  the  courts  of 
the  country  of  which  the  port  is  part  to  punish  crimes  com- 
mitted by  one  foreigner  on  another  in  a  foreign  merchant  ship. 
...  As  the  owner  has  voluntarily  taken  his  vessel  for  his 
own  private  purposes  to  a  place  within  the  dominion  of  a  gov- 
ernment other  than  his  own  and  from  which  he  seeks  protec- 
tion during  his  stay,  he  owes  that  government  such  allegiance 
for  the  time  being  as  is  due  for  the  protection  to  which  he 
becomes  entitled. 

"  From  experience,  however,  it  was  found  long  ago  that  it 
would  be  beneficial  to  commerce  if  the  local  government  would 
abstain  from  interfering  with  the  internal  discipline  of  the 
ship  and  the  general  regulation  of  the  rights  and  duties  of  the 
officers  and  crew  toward  the  vessel  or  among  themselves.  And 
80  by  comity  it  came  to  be  generally  understood  among  civil- 
»  Moore'a  "Digest,"  rol.  II,  pp.  577-9. 


168  STATES  IN  INTERNATIONAL  LAW 

ized  nations  that  all  matters  of  discipline  and  all  things  done 
on  board  which  affected  only  the  vessel  or  those  belonging  to 
her  and  did  not  involve  the  peace  or  dignity  of  the  country 
or  the  tranquillity  of  the  port  should  be  left  by  the  local  gov- 
ernment to  be  dealt  with  by  the  authorities  of  the  nation  to 
which  the  vessel  belonged  as  the  laws  of  that  nation  or  the 
interests  of  its  commerce  should  require."* 

Westlake  says  further  upon  this  subject:  "Matters  con- 
cerning the  ship  herself,  as  the  proprietary  title  to  her,  damage 
done  by  her,  salvage  due  from  her,  or  her  seizure  in  satisfac- 
tion of  a  debt,  will  belong  to  the  local  courts  whenever  referred 
to  them  by  the  accepted  rules  of  national  jurisdiction  applied 
to  her  actual  situation  or  to  the  person  of  her  owners  or  others 
interested  in  her.  If  the  crew,  whether  on  shore  or  while  re- 
maining on  board,  commit  offences  against  other  ships  in  the 
anchorage  or  against  the  inhabitants  of  the  land,  the  local 
courts  will  punish  them,  and  the  local  authorities  will  not  be 
under  the  necessity  of  requiring  her  to  quit  their  waters  but 
will  use  on  board  of  her  whatever  force  may  be  needed.  Even 
offences  committed  on  board  of  her  against  persons  and  things 
also  on  board  of  her  will  fall  under  the  local  jurisdiction  if 
.  .  .  they  involve  a  violation  of  the  rights  and  interests  of  a 
littoral  state  or  of  its  subjects  not  forming  part  of  its  crew  or 
passengers."^ 

The  rule  held  by  the  French  Government  has  tended  to 
modify  the  usage  of  complete  jurisdiction  in  all  matters  over 
the  merchant  ship  and  its  personnel  in  a  foreign  port.  This 
modification  is  shown  both  in  the  decision  of  Chief  Justice 
Waite  in  the  case  of  the  Belgian  steamer  Noordland,  just  given, 
generally  known  as  the  Wildenhus  case,  and  the  remarks  just 
quoted  of  the  English  publicist  Westlake.  These  two  cases 
show  the  English  and  American  advance  toward  the  French 
rule,  or  view,  which  is  that  the  oflBcers  and  crew  of  a  merchant 

1  Scott's  "Cases,"  pp.  225-6.     Wildenhus  Case. 
*  Westlake,  part  I,  p.  259. 


THE  HIGH  SEAS  169 

ship  lying  in  a  foreign  port  are  not  like  a  party  of  isolated 
strangers  travelling  in  a  foreign  country,  but  are  a  body  of 
organized  men,  governed  internally  by  laws  of  their  country, 
enrolled  under  the  authority,  and  placed  under  a  master  or 
captain  who  has  a  standing  and  recognition  by  law.  The 
French  Government  and  courts  holding  this  view  find  a  dis- 
tinction between  acts  and  offences  connected  with  the  internal 
order  and  discipline  of  the  ship,  when  the  peace  of  the  port 
is  not  disturbed,  and  other  acts  which  have  an  external  effect. 
The  former  they  leave  to  the  laws  of  the  state  to  which  the 
ship  belongs;  the  latter  they  regard  as  subject  to  the  juris- 
diction concerned. 

"The general  rendering  of  the  reciprocal  conventions  upon  the 
matter  is  that  consular  ofiicers  shall  have  exclusive  charge  of 
the  internal  order  of  the  merchant  vessels  of  their  nations. 
The  local  authorities  are  not  in  any  way  to  interfere  except  in 
cases  where  the  differences  on  board  ship  are  of  a  nature  to 
disturb  the  peace  and  public  order,  in  port  or  on  shore,  or  where 
persons  other  than  the  officers  and  crew  of  the  vessel  are  parties 
to  the  disturbance.  Otherwise  the  local  authorities  confine 
themselves  to  the  rendering  of  forcible  assistance  if  required 
by  the  consular  authorities."^ 

"  Apart  from  acts  affecting  their  internal  order  and  dis- 
cipline and  not  disturbing  the  peace  of  the  port,  merchant 
vessels,  as  a  rule,  enjoy  no  exemption  from  the  local  jurisdic- 
tion. It  is,  therefore,  generally  laid  down  that  they  cannot 
grant  asylum."  ^ 

Certain  cases  in  which  opposite  ground  was  taken,  especially 
as  to  passengers  in  transit,  are  herewith  mentioned  as  matters 
of  interest  and  information.  The  case  of  Sotelo  is  one  of  in- 
terest and  is  given  by  Moore  as  follows: 

"In  1840  the  French  packet-boat  V Ocean,  which  made 
regular  voyages  between  Marseilles  and  the  coast  of  Spain  and 

1  Moore's  "Digest,"  vol.  II,  p.  303. 
*  Moore's  "Digest,"  vol.  II,  p.  855. 


170  STATES  IN  INTERNATIONAL  LAW 

Gibraltar,  received  on  board,  at  her  anchorage  at  Valencia,  M. 
Sotelo,  a  Spanish  ex-minister  who  was  under  prosecution  for 
political  offences.  The  vessel,  having  put  to  sea  without  knowl- 
edge of  the  number  and  personality  of  the  passengers  who  had 
embarked,  entered  the  port  of  Alicante,  where,  during  the 
customs  and  police  inspection,  M.  Sotelo  was  recognized,  seized, 
taken  ashore,  and  imprisoned.  The  captain  of  L'Ocean  pro- 
tested against  what  he  described  as  a  violation  of  his  flag  and 
in  vain  demanded  that  his  passenger  be  set  at  liberty,  invoking 
at  the  same  time  the  right  of  asylum  and  the  principle  of  ex- 
traterritoriality. 

"  Diplomatic  communications  on  the  subject  which  were  ex- 
changed between  the  governments  of  France  and  Spain  estab- 
lished it  in  the  clearest  manner  that  the  conduct  of  the  authori- 
ties of  Alicante  was  above  reproach;  that  no  injury  was  done 
to  the  flag,  since  the  acts  in  question  pertained  to  an  ordinary 
merchant  ship  and  to  a  high  measure  of  police  executed  inside 
the  port;  that  M.  Sotelo,  surreptitiously  embarked  at  Valencia, 
a  Spanish  port,  could  have  been  regularly  seized  and  arrested 
on  L'Ocean  at  another  port  of  the  same  country;  and,  finally, 
that  the  fact  that  she  had  been  on  the  high  seas  a  certain  time 
before  entering  Alicante  could  not  alter  the  nature  of  the  act 
done  at  the  place  of  departure  and  proved  at  the  place  of 
arrival,  under  the  dominion  of  the  same  laws  and  of  the  same 
territorial  legislation."^ 

"  The  case  of  Gamez  was  that  of  a  political  fugitive  from 
Nicaragua  who  voluntarily  took  passage  at  San  Jose  de  Gua- 
temala for  Punta  Arenas,  Costa  Rica,  on  board  the  Pacific 
mail  steamship  Honduras,  knowing  that  the  vessel  would 
enter  en  route  the  port  of  San  Juan  del  Sur,  Nicaragua.  Upon 
learning  the  fact  of  his  being  on  board  this  steamer,  the  govern- 
ment of  Nicaragua  ordered  the  commandant  of  the  port  of 
San  Juan  del  Sur,  Nicaragua,  to  arrest  Gdmez  upon  the  arrival 
of  the  Honduras.  When  the  Honduras  reached  San  Juan  the 
»  Moore's  "Digest,"  vol.  II,  p.  856. 


THE  HIGH  SEAS  171 

authorities  of  that  port  requested  the  captain  of  the  steamer 
to  deliver  up  Mr.  Gamez,  which  he  declined  to  do,  and  set 
sail  without  proper  clearance  papers.  Of  this  case  Mr.  Bay- 
ard, the  secretary  of  state,  says :  '  It  is  clear  that  Mr.  Gamez 
voluntarily  entered  the  jurisdiction  of  a  country  whose  laws 
he  had  violated.' 

"  Under  the  circumstances,  it  was  plainly  the  duty  of  the 
captain  of  the  Honduras  to  deliver  him  up  to  the  local  authori- 
ties upon  their  request. 

"  It  may  be  safely  aflSrmed  that  when  a  merchant  vessel  of 
any  country  visits  the  ports  of  another  for  the  purposes  of 
trade  it  owes  temporary  allegiance  and  is  amenable  to  the  juris- 
diction of  that  country  and  is  subject  to  the  laws  which  govern 
the  port  it  visits  so  long  as  it  remains,  unless  it  is  otherwise 
provided  by  treaty. 

"  Any  exemption  or  immunity  from  local  jurisdiction  must 
be  derived  from  the  consent  of  that  country.  No  such  exemp- 
tion is  made  in  the  treaty  of  commerce  and  navigation  con- 
cluded between  this  country  and  Nicaragua,  on  the  21st  day 
of  June,  1867." » 

"  In  the  Barrundia  case  the  facts  were  as  follows:  General 
Barrundia,  an  ex-minister  of  war  of  Guatemala,  had  been  at- 
tempting for  some  time  to  incite  an  insurrection  in  Guatemala 
from  his  temporary  residence  within  the  Mexican  border, 
Guatemala  being  at  war  with  Salvador  at  the  time.  When, 
upon  complaint  of  Guatemala,  the  government  of  Mexico  re- 
quired Barrundia  to  leave  the  borders  of  Guatemala,  he  pro- 
ceeded with  two  of  his  followers  to  Acapulco,  a  Mexican  port, 
and  embarked  on  board  an  American  mail-steamer  ostensibly 
for  Panama,  but  with  reasonable  certainty  for  Salvador,  to 
join  the  Salvadoran  forces  against  Guatemala.  Upon  reach- 
ing a  Guatemalan  port,  Champerico,  his  arrest  was  determined 
upon  by  the  Guatemalan  authorities,  but  the  master  of  the 
mail-steamer  declined  to  give  him  up  without  the  written 
1  Moore's  "Digest,"  vol.  II,  p.  868. 


172  STATES  IN  INTERNATIONAL  LAW 

authority  of  the  American  minister  resident  in  Guatemala 
City.  Upon  arrival  at  San  Jose,  the  second  Guatemalan  port 
of  call,  the  letter  of  the  minister  was  brought  on  board  by  the 
arresting  force,  which  advised  the  master  to  give  Barrundia 
up  to  the  Guatemalan  officials,  stating  that  the  government 
had  promised  that  his  life  would  be  spared.  The  arrest  was 
then  permitted,  but  Barrundia,  resisting  arrest  with  firearms, 
was  killed  on  board  the  steamer  by  the  officials  attempting 
arrest.  The  American  minister  was  removed  by  the  govern- 
ment of  the  United  States  for  authorizing  the  arrest,  and  the 
senior  naval  officer  of  the  United  States  in  port,  commanding 
the  U.  S.  S.  Ranger,  was  relieved  from  his  command  for  not 
offering  an  unsolicited  asylum  to  Barrundia  on  board  of  his 
vessel. 

"The  Guatemalan  Government  desired  the  arrest  of  Bar- 
rundia both  for  common  crimes  and  as  an  enemy  of  the  country 
within  its  borders.  The  arrest  was  desired  as  a  matter  of  self- 
preservation,  as  Barrundia  was  on  his  way  to  wage  war  from 
the  southern  border,  as  he  already  had  attempted  to  do  upon 
the  northern  border. 

"  It  can  hardly  be  claimed  that  Barrundia  possessed  im- 
munity from  arrest  because  he  was  on  board  of  a  merchant 
vessel  carrying  the  American  flag,  as  there  is  no  foundation 
in  international  law  for  this  position.  As.  to  offering  an  unsolic- 
ited asylum  on  board  the  Ranger,  it  is  needless  to  say  that  the 
position  of  both  the  State  and  Navy  Departments  is  in  opposi- 
tion to  such  voluntary  action.  The  reason  given  for  claim- 
ing immunity  from  arrest  under  the  circumstances  is  that  an 
exceptional  rule  should  be  adopted  or  usage  acknowledged  to 
exist  in  Spanish-American  states  which  is  in  violation  of  their 
rights  as  sovereign  states.  Secretary  Gresham's  letter  of 
December  30,  1893,  must  be  conceded  to  give  the  final  and 
authoritative  statement  of  our  policy  in  the  matter.  In  the 
paragraph  that  is  applicable  to  the  Barrundia  case  he  states  as 
follows: 


THE  HIGH  SEAS  173 

"  '  The  so-called  doctrine  of  asylum  having  no  recognized 
application  to  merchant  vessels  in  port,  it  follows  that  a  ship- 
master can  found  no  exercise  of  his  discretion  on  the  char- 
acter of  the  offence  charged.  There  can  be  no  analogy  to  pro- 
ceedings in  extradition  when  he  permits  a  passenger  to  be 
arrested  by  the  arm  of  the  law.  He  is  not  competent  to  deter- 
mine whether  the  offence  is  one  justifying  surrender  or  whether 
the  evidence  in  the  case  is  sufficient  to  warrant  arrest  and  com- 
mitment for  trial  or  to  impose  conditions  upon  the  arrest. 
His  function  is  passive  merely,  being  confined  to  permitting 
the  regular  agents  of  the  law,  on  exhibition  of  lawful  warrant, 
to  make  the  arrest.  The  diplomatic  and  consular  representa- 
tives of  the  United  States  in  the  country  making  the  demand 
are  as  incompetent  to  order  surrender  by  way  of  quasi-extradi- 
tion  as  the  shipmaster  is  to  actively  deliver  the  accused.  This 
was  established  in  the  celebrated  Barrundia  case  by  the  dis- 
avowal and  rebuke  of  Minister  Mizner's  action  in  giving  to 
the  Guatemalan  authorities  an  order  for  the  surrender  of  the 
accused. 

"  '  If  it  were  generally  understood  that  the  masters  of  Amer- 
ican merchantmen  are  to  permit  the  orderly  operations  of  the 
law  in  ports  of  call,  as  regards  persons  on  board  accused  of 
crime  committed  in  the  country  to  which  the  port  pertains, 
it  is  probable,  on  the  one  hand,  that  occasions  of  arrest  would 
be  less  often  invited  by  the  act  of  the  accused  in  taking  pas- 
sage with  a  view  to  securing  supposed  asylum  and,  on  the 
other  hand,  that  the  regular  resort  to  justice  would  replace 
the  reckless  and  offensive  resort  to  arbitrary  force  against  an 
unarmed  ship  which,  when  threatened  or  committed,  has  in 
more  than  one  instance  constrained  urgent  remonstrance  on 
the  part  of  this  government.'  "  ^ 

»  Moore's  "Digest,"  vol.  II,  p.  881. 


174  STATES  IN  INTERNATIONAL  LAW 


TOPICS   AND   REFERENCES 

1.  What  is  Meant  by  the  High  Seas — 

Moore's  "Digest,"  vol.  I,  741;  vol.  II,  885.  Oppenheim,  2d  ed., 
vol.  I,  321-2.  D.  D.  Field,  "Outlines  of  an  International  Code," 
2d  ed.,  N.  Y.,  1876,  art.  53. 

2.  The  Freedom  of  the  High  Seas — 

Oppenheim,  2d  ed.,  vol.  I,  315-320,  323-8.  Wheaton,  8th  ed.,  Dana, 
pars.  186-7;  Dana's  note  113.  Grotius,  "De  Mare  Liberum," 
1609.    Moore's  "Digest,"  II,  sec.  319. 

3.  Jurisdiction  upon  Vessels  on  the  High  Seas  and  Other  Waters — 

Moore's  "Digest,"  vols.  I  and  II,  sees.  174,  321-8.  Wheaton,  8th 
ed.,  Dana,  sees.  100-9,  and  Dana's  notes  nos.  62,  66,  and  67. 
H.  Taylor,  sees.  253-271.    Scott's  "Cases,"  331-342. 

4.  Piracy — 

Moore's  "Digest,"  II,  sees.  311-314.  Scott's  "Cases,"  345-369. 
Halleck,  I,  4th  ed..  Baker;  Daly's  note,  85-89,  and  476-483. 

6.  Right  of  Approach — 

Hershey's  "Essentials,"  226.  "Case  of  the  Marianna  Flora  "  (Judge 
Story),  II;  Wheaton,  I.    Snow,  2d  ed.,  164-5. 

6.  Papers  Carried  by  Merchant  Vessels — 

Snow,  2d  ed..  Appendix  I.  Moore's  "Digest,"  II,  1002-70.  Stock- 
ton's "Naval  Manual,"  Appendix  VI. 

7.  Immunities  of  Men-of-War  in  Foreign  Ports — 

Chief  Justice  Marshall,  Exchange  v.  McFaddon  (1812).  Scott's 
"Cases,"  208,  216.  Moore's  "Digest,"  562-592.  Phillimore,  I, 
3d  ed.,  476-483. 

8.  Immunity  of  Refugees  on  Board  Vessels  of  War  in  Foreign  Ports — 

Moore's  "Digest,"  vol.  II,  845-885.  Snow,  ed.  Stockton,  "Inter- 
national Law,"  2d  ed.,  par.  29.     "U.  S.  Navy  Regulations." 

9.  Status  of  Merchantmen  in  Foreign  Ports — 

Phillimore,  I,  3d  ed.,  483-7.  Moore's  "Digest,"  II,  sees.  204-8,  in- 
clusive.   Scott's  "Cases,"  225-237. 


CHAPTER  IX 
NATIONALITY.    ALIENS.    EXTRADITION 

84.  Nationality. — It  must  be  recalled  that  a  state,  besides 
having  territory,  is  composed  of  certain  persons  who  are  its 
members,  that  is,  individuals  who  are  known  as  citizens  or  sub- 
jects, or,  to  use  a  more  comprehensive  term,  its  nationals.  All 
other  persons  residing  w'ithin  the  limits  of  the  territory  of  the 
state  are  known  as  aliens  or  foreigners. 

For  internal  purposes  there  may  be  a  distinction  made  be- 
tween different  classes  of  a  state.  Individuals  though  perma- 
nent inhabitants  of  a  state  may  be  denied  the  name  of  citizens 
though  fully  entitled  to  its  protection.  Thus  in  the  United 
States  inhabitants  of  the  Philippine  Islands  or  of  Porto  Rico 
are  not  citizens,  but  they  are  nationals  and,  as  such,  fully  en- 
titled to  the  protection  of  the  United  States  at  home  and 
abroad.  The  name  and  rights  of  citizens  are  also  refused  by 
France  to  certain  subjected  populations  in  Africa. 

In  Great  Britain  the  term  citizen  can  be  used  under  certain 
circumstances,  but  the  word  subjects  is  used  for  all  portions 
of  its  permanent  population,  whether  civiHzed,  semiciviUzed, 
or  barbarous.  In  British  India,  for  instance,  there  are  different 
laws  for  the  Hindoo,  the  Mohammedan,  or  the  British  whites. 
They  are  not  under  any  foreign  authority,  however,  and  they 
are  subjects  as  well  as  nationals  of  the  British  Empire. 

The  national  tie  between  a  state  and  its  nationals  is  not 
severed  by  a  departure  from  the  territory  of  the  state.  The 
national  is  entitled  to  the  protection  of  his  state  abroad  as  well 
as  at  home.  Aliens  are  not  entitled  to  the  protection  of  any 
other  state  than  their  own  when  outside  of  the  territory  of 

175 


176  STATES  IN  INTERNATIONAL  LAW 

that  state,  except  that  due  to  any  domiciled  person  and  in 
certain  other  exceptional  cases. 

The  first  of  these  exceptions  is  that  of  the  alien  in  the  United 
States  who  has  renounced,  or  has  been  renounced  by,  his  own 
country  but  who  has  not  had  the  necessary  time  of  residence 
to  attain  citizenship.  By  the  act  of  Congress  of  1907  it  is 
provided  that  passports  can  be  issued  for  six  months,  without 
renewal,  to  persons  not  citizens  of  the  United  States,  entitling 
them  to  the  protection  of  the  United  States  in  any  foreign 
country  except  the  country  of  which  he  was  a  national  before 
making  his  declaration  of  an  intention  to  become  a  citizen  of 
the  United  States,  a  residence  of  three  years  in  the  United  States 
being  also  necessary. 

A  second  exception  as  to  the  protection  of  aliens  is  when 
by  international  agreement,  or  for  purposes  of  humanity,  a 
state  through  its  diplomatic  or  naval  agents  abroad  assumes 
or  gives  this  protection.  Agreements  have  been  made  by  a 
small  state  like  Switzerland  for  permanent  protection  of  its 
nationals  where  they  have  no  representative  agents,  as  in 
Turkey,  while  a  temporary  protection  may  also  be  given  by 
neutral  diplomatic  agents  in  time  of  war  in  an  enemy's  coun- 
try, as  in  the  Franco-German  War  of  1870,  when  the  American 
minister  in  Paris  assumed,  by  request,  the  care  and  protec- 
tion of  German  subjects  in  Paris  during  its  siege  by  German 
forces.  These  subjects  were  called  proteges  of  the  American 
minister. 

Instances  of  naval  protection  afforded  to  foreign  nationals 
have  occurred  also  in  uncivilized  or  weak  countries  like  China, 
and  in  isolated  territory  like  that  of  Chile  in  the  Strait  of 
Magellan  during  penal  revolts,  and  also,  in  1877,  by  men-of- 
war  on  the  occasion  of  a  negro  insurrection  in  the  Danish  West 
Indies. 

A  third  exception  takes  place  in  Eastern  countries,  especially 
in  the  Turkish  dominions,  where  protection,  in  accordance  with 
local  custom,  may  be  given  to  aliens  actually  in  discharge  of 


NATIONALITY.    ALIENS.    EXTRADITION  177 

ojQBcial  and  personal  service  under  the  direction  of  consular 
officers. 

In  addition  to  these  proteges  there  existed  others  in  times 
past  more  than  now.  For  example:  "  By  the  laws  of  Turkey 
and  other  Eastern  nations,"  Secretary  Marcy  wrote  in  the  case 
of  ]Martin  Koszta,  "  the  consulates  therein  may  receive  under 
their  protection  strangers  and  sojourners  whose  religion  and 
social  manners  do  not  assimilate  with  the  religion  and  man- 
ners of  those  countries.  The  persons  thus  received  become 
thereby  invested  with  the  nationality  of  the  protecting  con- 
sulates."^ 

The  case  of  Martin  Koszta  was  as  follows:  Koszta,  by  birth 
a  Hungarian  and  hence  an  Austrian  subject,  took  an  active 
part  in  the  insurrection  of  1848-9  for  the  independence  of 
Hungary.  At  the  unsuccessful  termination  of  that  movement 
Koszta  escaped  to  Turkey,  which  country  refused  to  return 
him  to  Austria  but  expelled  him  from  their  territory  with  the 
consent  of  Austria  and  with  the  understanding  that  he  should 
go  to  foreign  parts.  Koszta  came  to  the  United  States  and 
established  a  domicile  in  this  country.  In  1852  he  made  a 
declaration  of  his  intention  to  become  a  citizen  of  the  United 
States  before  the  proper  tribunal  In  the  usual  legal  manner. 
After  remaining  nearly  two  years  in  the  United  States  he  pro- 
ceeded to  Smyrna,  in  Turkish  territory,  on  account,  it  is  stated, 
of  private  business  of  a  temporary  nature,  claiming  the  rights 
of  a  naturalized  citizen  of  the  United  States,  and  offering  to 
place  himself  under  the  protection  of  the  United  States  consul 
at  Smyrna;  the  latter  official,  after  a  delay,  extended  protection 
to  him,  giving  him  a  letter  of  safe  conduct,  which,  under  the 
Turkish  laws,  they  have  a  right  to  do.  While  waiting  In 
Smyrna,  as  Is  alleged,  for  an  opportunity  to  return  to  the 
United  States,  he  was  seized  by  some  people  without  any  au- 
thority, treated  harshly,  and  finally  thrown  Into  the  sea,  from 
which  he  was  picked  up  by  a  boat  from  the  Austrian  brig  of 
1  Moore's  "Digest,"  vol.  Ill,  p.  832. 


178  STATES  IN  INTERNATIONAL  LAW 

war  The  Hussar,  taken  by  force  on  board  that  vessel,  and 
confined  in  irons.  Application  on  the  part  of  the  American 
consul  and  our  charge  d'affaires  for  his  release  was  unsuccessful. 
The  U.  S.  S.  Si.  Louis,  under  the  command  of  Captain  In- 
graham,  arriving  in  the  harbor  of  Smyrna  at  this  time,  represen- 
tation was  duly  made  to  Captain  Ingraham  concerning  the 
state  of  affairs.  After  full  investigation  of  the  matter,  and 
after  being  convinced  that  it  was  the  intention  of  the  com- 
mander of  The  Hussar  to  convey  Koszta  to  Austrian  territory, 
Ingraham  made  a  demand  for  his  release,  intimating  that  he 
would  resort  to  force  if  the  demand  was  not  complied  with  by 
a  certain  hour.  An  arrangement  was,  however,  made  by  which 
Koszta  was  delivered  to  the  French  consul-general  at  Smyrna, 
there  to  remain  until  he  should  be  disposed  of  by  the  mutual 
agreements  of  the  consuls  of  the  respective  governments  at 
that  place.  Pursuant  to  that  agreement  he  was  released  and 
returned  to  the  United  States.^ 

"  According  to  the  principle  established  in  this  case,"  Secre- 
tary Marcy  further  states,  "  Koszta  was  invested  with  the 
nationality  of  the  United  States,  if  he  had  it  not  before,  the 
moment  he  was  under  the  protection  of  the  American  consul 
at  Smyrna  and  the  American  legation  at  Constantinople. 
That  he  was  so  received  is  established  by  the  tezkereh  they 
gave  him  and  the  efforts  they  made  for  his  release."^ 

85.  Citizenship  by  Birth. — Persons  who  have  citizenship  by 
birth  may  acquire  it  by  being  born  within  the  territory  of 
their  state  (jure  soli,  jus  soli)  or,  if  abroad,  through  the  nation- 
ality of  their  parents  (Jure  sanguinis).  The  Fourteenth  Amend- 
ment to  the  Constitution  of  the  United  States  says  that  "all 
persons  born  or  naturalized  in  the  United  States  and  subject 
to  the  jurisdiction  thereof  are  citizens  of  the  United  States  and 
of  the  State  where  they  reside." 

This  law  would  not  apply  to  persons  born  In  the  United 

1  Stockton's  "Naval  Manual,"  pp.  43-45. 
'Moore's  "Digest,"  vol.  Ill,  832-3. 


NATIONALITY.    ALIENS.    EXTRADITION  179 

States  but  of  parents  enjoying  the  immunities  of  foreign  diplo- 
matic officers  and  hence  not  subject  to  the  jurisdiction  of  the 
United  States.  On  the  other  hand,  children  of  American  diplo- 
matic or  consular  agents  residing  abroad,  if  born  abroad  are 
citizens  of  the  United  States.  This  is  extended  by  the  law  of 
1855  which  reads  that  "all  children  heretofore  born  or  here- 
after born  out  of  the  limits  and  jurisdiction  of  the  United  States, 
whose  fathers  were  or  may  be  at  the  time  of  their  birth  citizens 
of  the  United  States,  are  declared  to  be  citizens  of  the  United 
States;  but  the  rights  of  citizenship  shall  not  descend  to  chil- 
dren whose  fathers  never  resided  in  the  United  States."  Chil- 
dren born  abroad  of  persons  once  citizens  of  the  United  States 
but  who  have  become  citizens  or  subjects  of  a  foreign  power 
are  not  citizens  of  the  United  States  nor  entitled  to  protection 
as  such  according  to  the  ruling  of  the  attorney-general  of  the 
United  States  in  1873.^ 

Under  the  law  of  1855  quoted  above,  nationality  is  not  In- 
herited through  women,  and  an  illegitimate  child  born  abroad 
of  an  American  woman  is  not  a  citizen  of  the  United  States.^ 

The  rules  just  given  are  those  prevailing  in  the  United  States 
and,  in  principle,  in  Great  Britain,  Portugal,  and  most  of  the 
Latin-American  states. 

A  modification  of  this  system  prevails  in  Germany,  Austria- 
Hungary,  Sweden,  and  Switzerland,  whereby  children  born 
within  the  territory  and  jurisdiction  of  a  state,  to  alien  parents, 
are  regarded  as  aliens  or  foreigners. 

Another  system  prevails  in  France  by  which  every  child  of  a 
Frenchman  is  held  to  be  of  French  nationality,  whether  born 
in  France  or  abroad;  whereas  an  individual  born  in  France  to 
alien  parents  and  not  domiciled  in  France  at  the  age  of  major- 
ity is  regarded  as  a  foreigner.  But  until  the  completion  of 
his  twenty-second  year  such  an  individual  has  the  option  of 
making  an  act  of  submission  by  declaring  his  intention  to  ac- 

'  Moore's  "Digest,"  vol.  Ill,  p.  282. 
«  Moorc'B  "Digest,"  vol.  Ill,  p.  285. 


180  STATES  IN  INTERNATIONAL  LAW 

quire  a  French  domicile;  and  if  he  acquires  such  a  domicile 
within  a  year  after  his  act  of  submission,  he  may  claim  French 
nationality  by  means  of  a  declaration,  which  will  be  registered 
with  the  ministry  of  justice.  Every  individual  born  in  France 
to  a  foreigner  and  who  is  domiciled  there  at  the  time  of  his 
majority  is  regarded  as  a  Frenchman,  unless,  within  the  year 
following  his  majority,  he  has  declined  French  nationality  and 
proved  that  he  has  preserved  the  nationality  of  his  parents  by 
means  of  an  attestation  drawn  up  in  due  form  by  his  govern- 
ment.* These  principles  apply  also  to  Belgium,  Holland, 
Greece,  Turkey,  Russia,  Spain,  and  Italy. 

The  act  of  February  10,  1855,  which  has  already  been  re- 
ferred to,  is  incorporated  in  Section  1993  of  the  Revised  Statutes 
of  the  United  States.  The  act  of  1907  supplementing  this 
section  declares  in  Article  5  "that  a  child  born  without  the 
United  States  of  alien  parents  shall  be  deemed  a  citizen  of  the 
United  States  by  virtue  of  the  naturalization  of,  or  resumption 
of  American  citizenship  by,  the  parents.  Provided,  that  such 
naturalization  or  resumption  takes  place  during  the  minor- 
ity of  such  child;  and  provided,  further,  that  the  citizenship 
of  such  minor  child  shall  begin  at  the  time  such  minor  child 
begins  to  reside  permanently  in  the  United  States." 

In  Article  6  of  the  same  act  it  is  stated  that  "all  children 
born  outside  the  limits  of  the  United  States  who  are  citizens 
thereof  in  accordance  with  the  provisions  of  Section  1993  of 
the  Revised  Statutes  of  the  United  States  and  who  continue 
to  reside  outside  the  United  States  shall,  in  order  to  receive 
the  protection  of  this  government,  be  required,  upon  reaching 
the  age  of  eighteen  years,  to  record  at  an  American  consulate 
their  intention  to  become  residents  and  remain  citizens  of  the 
United  States  and  shall  be  further  required  to  take  the  oath 
of  allegiance  to  the  United  States  upon  attaining  their  major- 
ity."2 

»Hershey'8  "Essentials,"  pp.  238-9. 

» Supplement  to  4.  J.  I.  L.,  1907,  p.  259. 


NATIONALITY.    ALIENS.    EXTRADITION  181 

86.  Naturalization. — Citizenship  can  be  acquired  after 
birth  by  naturahzation.  This  generally  involves  the  change 
from  the  allegiance  and  sovereignty  of  one  state  to  that  of 
another.  It  is  defined  as  the  reception  of  an  alien  into  the 
citizenship  of  a  state  through  a  formal  act  on  application  of 
the  favored  individual.  This  is  naturalization  in  the  ordinary 
sense.  Besides  this  method  of  naturalization  it  may  also  take 
place  through  marriage,  legitimation,  resumption,  option,  ac- 
quisition of  domicile,  or  appointment  as  a  government  official. 
It  is  a  customary  rule  also  in  international  law  that  the  inhabi- 
tants of  conquered  and  ceded  territory  lose  one  nationality  and 
acquire  another  by  the  annexation  of  the  territory  to  that  of 
the  conquering  state.  This  is  often  known  as  collective  nat- 
uralization or  citizenship. 

Naturalization  is  regulated  by  municipal  law,  but  it  is  also 
a  matter  of  importance  in  connection  with  international  law  as 
questions  of  legal  nationality  may  become  of  serious  impor- 
tance involving  grave  matters  of  international  policy  and 
action.  The  doctrine  of  perpetual  allegiance  which  once  pre- 
vailed in  several  countries  may  be  considered  as  no  longer  ex- 
isting, while  the  right  of  expatriation  is  generally  conceded  in 
fact  if  not  in  principle. 

It  does  not  always  follow  that  naturalization,  which  is  an 
act  of  municipal  law,  grants  all  rights  alike  to  the  naturalized 
citizen  and  to  one  native-born.  The  Constitution  of  the 
United  States,  for  instance,  restricts  the  presidency  of  the 
nation  to  native-born  citizens. 

As  has  been  previously  mentioned  naturalization  is  with 
us  a  judicial  act,  while  the  power  to  make  naturalization  laws 
rests  alone  with  Congress.  A  certificate  of  naturalization  in 
regular  form  by  a  proper  court  is  treated,  as  a  rule,  as  con- 
clusive evidence  of  citizenship. 

The  declaration  of  intention  to  become  a  citizen  of  course 
does  not  convey  citizenship;  it  is  a  necessary  preliminary  inten- 
tion and  is  an  assurance  of  sincerity  and  stability  of  purpose. 


182  STATES  IN  INTERNATIONAL  LAW 

A  certificate  that  such  declaration  has  been  made  must  be 
carefully  distinguished  from  a  certificate  of  naturalizatio:  . 
When  any  alien,  however,  who  had  declared  his  intention  to 
become  a  citizen  of  the  United  States  dies  before  he  is  actually 
naturalized,  it  is  held  that  his  widow  and  minor  children  may, 
by  complying  with  the  other  provisions  of  the  naturalization 
laws,  be  admitted  to  citizenship  without  having  to  make,  on 
their  part,  the  declaration  of  intention. 

As  to  the  question  of  expatriation  which  follows  naturaliza- 
tion, an  American  citizen  is  deemed  to  have  expatriated  him- 
self when  he  has  been  naturalized  in  any  foreign  state  in 
conformity  with  its  municipal  law.  On  the  other  hand,  if  a 
naturalized  American  citizen  resides  continuously  for  two 
years  in  the  foreign  state  from  which  he  came,  or  for  five  years 
in  any  other  foreign  state,  it  is  presumptive  evidence  that  he 
has  ceased  to  be  an  American  citizen.  Such  presumption  can 
be  overcome  on  the  presentation  of  satisfactory  evidence  to 
the  contrary.  An  American  citizen  is  not  allowed  to  expatri- 
ate himself  when  his  country  is  at  war. 

By  a  convention  adopted  in  the  third  Pan-American  con- 
ference in  1906  and  ratified  by  the  United  States  in  1908  the 
following  articles  were  adopted: 

"1.  If  a  citizen,  a  native  of  any  of  the  countries  signing  the 
present  convention,  and  naturalized  in  another,  shall  again 
take  up  his  residence,  in  his  native  country  without  the  inten- 
tion of  returning  to  the  country  in  which  he  has  been  naturalized, 
he  will  be  considered  as  having  reassumed  his  original  citizen- 
ship, and  as  having  renounced  the  citizenship  acquired  by  the 
said  naturalization. 

"2.  The  intention  not  to  return  will  be  presumed  to  exist 
when  the  naturalized  person  shall  have  resided  in  his  native 
country  for  more  than  two  years.  But  this  presumption  may 
be  destroyed  by  evidence  to  the  contrary. 

"3.  This  convention  will  become  effective  in  the  countries 
that  ratify  it  three  months  from  the  dates  upon  which  said 


NATIONALITY.    ALIENS.    EXTRADITION  183 

ratifications  shall  be  communicated  to  the  government  of  the 
United  States  of  Brazil;  and  if  it  should  be  denounced  by  any 
one  of  them  it  shall  continue  in  effect  for  one  year  more,  to 
count  from  the  date  of  such  denouncement. 

"4.  The  denouncement  of  this  convention  by  any  one  of  the 
signatory  states  shall  be  made  to  the  government  of  the  United 
States  of  Brazil  and  shall  take  effect  only  with  regard  to  the 
country  that  may  make  it."  ^ 

AH  naturalized  citizens  while  in  foreign  countries  are  en- 
titled to  the  same  protection  as  to  persons  and  property  which 
is  due  native-born  citizens.  The  United  States  has  many  special 
treaties  covering  the  status  of  naturalized  citizens  when  re- 
turning to  their  native  countries.  The  right  of  protection 
goes,  however,  with  the  right  to  demand  the  allegiance  and 
support  from  the  naturalized  citizen  on  the  part  of  the  state. 

The  necessity  for  special  treaties  on  the  subject  of  naturaliza- 
tion will  be  evident  when  it  is  realized  that  some  states  still 
take  the  ground  that  a  renunciation  of  nationality  without  the 
consent  of  the  government  is  punishable  or  results  in  practical 
exile  from  the  original  state.  Turkey  permits  tacitly  the  ex- 
patriation of  Ottoman  subjects  so  long  as  they  remain  outside 
Turkish  territory. 

By  the  laws  of  the  United  States  only  white  persons  or  aliens 
of  African  descent  are  capable  of  being  naturalized.  The  law 
of  190G  also  provides  that  no  alien  shall  hereafter  be  naturalized 
or  admitted  as  a  citizen  of  the  United  States  who  cannot 
speak  the  English  language  unless  he  is  physically  unable  to 
speak,  and  it  has  been  held  by  the  proper  courts  that  neither 
Chinese,  Japanese,  Burmese,  Hawaiians,  nor  American  Indians 
can  be  naturalized  under  the  statute  law.  No  alien  who  is  a 
natural  citizen  or  subject  or  a  denizen  of  any  country  with 
which  the  United  States  is  at  war  at  the  time  of  his  application 
oan  be  admitted  to  citizenship.  Anarchists,  especially  those 
of  a  militant  character,  are  not  allowed  by  statute  to  become 
>  Supplement  to  A.  J.  I.  L.,  p.  227,  October,  1913. 


184  STATES  IN  INTERNATIONAL  LAW 

citizens  of  the  United  States.  Any  woman  who  is  or  becomes 
married  to  a  citizen  of  the  United  States  and  who  is  not  barred 
from  naturalization  by  being  other  than  white  or  of  African 
descent  is  also  deemed  to  be  a  citizen  of  the  United  States 
This  applies  to  the  wife  of  an  alien  who  becomes  naturlized 
after  his  marriage.  As  to  a  divorced  woman,  it  is  assumed 
in  a  case  decided  in  the  courts  of  the  United  States  that  she 
remains  a  citizen  of  the  state  in  which  her  husband  held 
citizenship  unless  she  changes  her  nationality  in  some  legal 
manner. 

By  law  it  has  been  finally  provided  in  general  that  a  foreign 
woman  acquires  American  citizenship  by  marrying  an  Ameri- 
can, retaining  it  after  termination  of  the  marriage  by  any 
method  unless  she  renounces  the  nationality  in  ways  duly 
provided.  Any  American  woman,  on  the  other  hand,  who 
marries  a  foreigner  in  the  same  way  acquires  the  nationality 
of  her  husband,  and  if  the  marriage  terminates  she  can  recover 
her  American  nationality  in  a  manner  provided  by  law.  Mis- 
sionaries and  others  living  in  barbarous  countries  or  countries 
where  exterritoriality  exists  under  our  laws  retain  their  citizen- 
ship. 

The  subject  of  naturalization  is  and  has  always  been  a 
matter  of  great  importance  to  the  United  States  from  the  large 
emigration  which  has  brought  to  this  country  millions  of  peo- 
ple, who  have  become  its  citizens  in  the  due  course  of  law  by 
naturalization.  On  account  of  the  varying  laws  and  usages  of 
the  native  countries  of  naturalized  citizens,  a  conflict  of  laws 
often  occurs.  The  systems  of  military  conscription  and  ser- 
vice in  the  countries  of  continental  Europe  add  to  the  friction 
and  confusion  generally  involved  in  this  subject.  Military 
service  requirements  have  compelled  many  special  treaties  to 
be  made,  carrying  differing  provisions  upon  the  subject.  Sea- 
men on  board  of  American  merchant  vessels  hold  a  peculiar 
position  as  to  citizenship,  as  they  are  given  protection  collec- 
tively without  regard  to  their  ordinary  status  of  nationality. 


NATIONALITY.    ALIENS.    EXTRADITION  185 

Sy  tlie  "Consular  Regulations"  of  1889  the  term  American 
seamen  includes  the  following: 

1.  Seamen,  being  citizens  of  the  United  States,  regularly 
sL'pped  in  an  American  vessel,  whether  in  a  port  of  the  United 
States  or  in  a  foreign  port. 

2.  Seamen,  foreigners  by  birth,  regularly  shipped  in  an 
American  vessel,  whether  in  a  port  of  the  United  States  or  a 
foreign  port,  who  have  declared  their  intention  to  become 
citizens  of  the  United  States  and  who  have  served  three  years 
thereafter  in  an  American  merchant  vessel.^ 

87.  Corporations  as  Citizens. — Corporations  are  held  to  be 
citizens  of  a  state  so  far  as  their  rights  are  concerned.  It  was 
decided  in  a  well-known  case  that,  under  the  treaties  of  1783 
and  1794  between  the  United  States  and  Great  Britain,  cor- 
porations are  entitled  in  respect  of  security  for  their  property 
to  the  same  rights  as  natural  persons. 

The  treaty  of  Guadalupe  Hidalgo  between  the  United  States 
and  ^Mexico  makes  no  distinction,  in  the  protection  it  provides, 
between  the  property  of  individuals  and  the  property  held  by 
towns  under  the  Mexican  Government. 

After  the  war  of  1898  with  Spain  and  under  the  treaty 
which  closed  the  war,  it  has  been  decided  in  the  case  of  the 
board  of  harbor  works  of  Ponce,  Porto  Rico,  that  this  Spanish 
corporation  became,  as  between  the  U^nited  States  and  other 
governments,  an  American  citizen.^ 

88.  Aliens. — Aliens,  by  whom  we  mean  foreigners,  either 
domiciled  in  or  passing  through  a  country,  are,  if  admitted 
into  a  country,  subject  to  its  laws  unless  they  are  exempted 
by  these  laws.  A  distinction  is  naturally  made  between  aliens 
who  are  travelling,  and  hence  whose  stay  in  the  country  is 
only  temporary,  and  others  who  take  up  their  residence  either 
permanently  or  for  a  period  of  some  duration. 

Both  classes  of  aliens  are,  however,  entitled  to  protection  of 

1  "U.  S.  Consular  Regulations,"  sec.  170. 

» Moore's  "Digest,"  vol.  Ill,  pp.  800,  801,  804. 


186  STATES  IN  INTERNATIONAL  LAW 

life  and  property,  and  in  order  to  secure  this  protection  they 
are  entitled  to  access  to  the  courts  of  the  country  in  the  same 
manner  as  citizens  or  subjects  of  the  country.  In  turn,  they 
are,  as  just  mentioned,  subject  to  the  local  laws  of  the  coun- 
try, punishable  for  crimes  or  any  violation  of  such  laws,  and 
are  also  subject  to  any  regulations  adopted  by  the  authorities 
of  the  state  with  respect  to  registration,  passports,  etc. 

In  time  of  war  it  has  been  held  by  the  United  States  that 
military  commissions  and  courts  martial  take  cognizance  of 
and  try  complaints  against  foreigners  as  well  as  citizens,  with- 
out discrimination  except  that  of  the  obligations  of  allegiance 
and  citizenship,  which  are  required  from  citizens  alone,  and  also 
that  the  rights  especially  belonging  to  domiciled  aliens  under 
treaties  or  the  laws  of  nations  are  to  be  observed.  The  sus- 
pension of  the  right  of  habeas  corpus  applies  to  aliens  as  well 
as  citizens.^ 

An  entire  exclusion  of  the  subjects  of  states  of  the  white 
race  from  the  territory  of  another  state  with  whom  they  are 
at  peace  does  not  exist  in  modern  times.  It  would  not  be  in 
accordance  with  the  usage  of  mutual  intercourse,  and  it  would 
most  probably  conflict  with  existing  treaties  between  the  na- 
tions. The  power  and  usage  to  exclude  undesirable  persons, 
however,  do  exist,  are  provided  for  by  the  passport  system, 
and  are  practised  extensively  by  the  United  States  and  to  a 
less  extent  by  other  nations,  including  Great  Britain.  This 
power  and  practice  of  exclusion  apply  both  to  Oriental  races 
and  undesirable  persons  of  the  white  race.  As  to  the  white 
race,  not  only  has  a  head  tax  been  levied  by  law,  but  paupers, 
idiots,  criminals,  polygamists,  anarchists,  etc.,  are  denied  entry 
by  law,  as  well  as  the  more  innocent  contract  laborers.  In 
other  words,  the  law  purposes  to  exclude  "such  aliens  as  may 
be  regarded  as  mentally,  morally,  or  physically  undesirable."^ 

In  states  like  Russia,  which  regard  Hebrews  as  a  special  and 

1  Moore's  "Digest,"  vol.  IV,  p.  17. 

2  Act  of  February  20,  1907,  A.  J.  I.  L.,  1907,  pp.  239-241. 


NATIONALITY.    ALIENS.    EXTRADITION  187 

inferior  class  of  persons  and  otherwise  undesirable,  there  is 
no  rule  of  international  law  requiring  the  reception  of  them 
in  that  country  as  aliens,  notwithstanding  that  they  enjoy 
full  rights  of  citizenship  in  the  country  from  which  they  come. 

With  the  right  of  exclusion  may  be  said  to  go  the  right  of 
expulsion,  but,  as  Westlake  says,  "in  most  countries  the  power 
of  expulsion  is  left  to  the  executive  department  of  the  govern- 
ment, which  habitually  exercises  it  for  purposes  of  police, 
subject  to  the  restraint  of  opinion,  which,  as  is  natural,  appears 
to  operate  more  strongly  against  the  expulsion  of  persons  al- 
ready allowed  to  reside  than  against  an  initial  refusal  of  ad- 
mission."^ 

89.  Domicile. — The  division  between  aliens  in  temporary 
residence  or  in  transit  and  those  more  particularly  known  as 
domiciled  aliens  is  not  very  sharp  or  definite.  A  very  tran- 
sient residence  may  involve  the  following  of  certain  regulations, 
such  as  the  publication  of  banns  in  Great  Britain  for  a  person's 
marriage,  while  the  distinction  varies  until  it  reaches  the  time 
when  an  alien  makes  his  only  home  or  domicile  in  the  foreign 
country  a  matter  extending  purposely  over  his  entire  life. 

By  domiciled  aliens,  then,  we  mean  foreigners  who  have  not 
relinquished  their  allegiance  to  a  foreign  state  and  are  conse- 
quently not  citizens  or  subjects  of  the  country  of  which  they 
are  residents.  They  have,  however,  made  their  home  in  the 
country  of  their  residence,  with  no  well-defined  intention  of 
returning  to  their  former  homes.  This  residence,  then,  be- 
comes, under  the  usages  of  international  law,  their  domicile 
and  is  so  termed. 

"  To  acquire  domicile  in  a  place,"  says  Moore,  "  there  must 
be  (1)  residence  and  (2)  an  intention  to  remain  permanently 
or  indefinitely.  Wliere  the  physical  facts  as  to  residence  are 
not  disputed,  the  sole  question  is  that  of  intention." ^  We 
may  add  to  this  that  time  may  become  also  an  element  in  the 
matter.     The   jurisdiction   which   a   state   exercises   over   its 

1  Westlake,  I,  p.  213.  »  Moore's  "Digest,"  vol.  Ill,  p.  813. 


188  STATES  IN  INTERNATIONAL  LAW 

domiciled  aliens  may  be  called  civil  in  contradistinction  to 
political  jurisdiction.  It  affects  their  civil  rights  and  obliga- 
tions and  may  also  affect  the  extent  of  their  liabilities,  especially 
as  to  taxation.  Their  status  becomes  very  different  from 
merely  transient  persons  in  extent  and  duration.  Domicile  in 
one  manner  only  is  generally,  but  not  universally,  admitted  to 
determine  national  character,  and  that  is  in  matters  of  deter- 
mination of  the  nationality  of  prize  in  war  time,  which  will  be 
referred  to  later  in  its  proper  place. 

When  nationals  reside  more  or  less  permanently  in  countries 
where  the  right  of  exterritoriality  is  possessed  by  them,  as  in 
the  case  of  China,  they  retain  the  domicile  as  well  as  the  citizen- 
ship of  the  country  of  their  allegiance,  as  they  are  still  to  a 
great  extent  living  under  the  protection  and  laws  of  their  own 
country. 

Aliens  are  not  liable,  as  a  rule,  to  be  incorporated  into  the 
military  service  of  the  country  in  which  they  hold  domicile, 
but  they  can,  if  permitted,  voluntarily  enlist  in  such  service. 
They  are,  however,  subject  to  call  for  service  in  the  militia  or 
local  police  to  maintain  social  order,  provided  the  duty  is 
police  duty  and  not  political  in  its  nature.  This  liability  to 
military  service  would  include  a  defence  against  savages,  an- 
archists, and  uncivilized  people  generally,  whose  success  would 
jeopardize  the  life  of  the  community. 

In  many  States  of  the  United  States  of  America  an  alien 
who  has  declared  his  intention  to  become  a  citizen  of  this 
country  may  vote  at  elections,  but  this  does  not  make  him  a 
citizen.  In  some  States  of  the  United  States  aliens  are  pro- 
hibited from  purchasing,  holding,  or  inheriting  real  estate; 
these  prohibitions  do  not  hold  good  if  they  are  in  violation  of 
treaties.  Aliens  are  subject  to  local  jurisdiction  whether  the 
government  under  which  they  live  is  a  titular  one  or  is  only 
one  of  a  de  facto  kind. 

"According  to  British  and  American  authorities  it  is  pos- 
sible to  possess  either  a  domicile  of  origin,  which  in  the  case  of 


NATIONALITY.    ALIENS.    EXTRADITION  189 

legitimate  children  is  the  domicile  of  the  father  at  the  time 
of  birth,  and  in  the  case  of  illegitimate  children,  that  of  the 
mother  at  the  same  time,  or  a  domicile  of  choice,  which  is  the 
domicile  deliberately  adopted  by  a  person  of  full  age."  ^ 

For  testamentary  and  general  purposes  an  alien  can  be  said 
to  have  but  one  domicile;  but  for  commercial  purposes  it  is 
considered  by  many  authorities  that  he  may  have  more  than 
one,  as  his  place  of  business  may  be  in  one  country  while  his 
residence  is  in  another;  or  he  may  be  a  partner  in  several 
commercial  houses  situated  in  several  different  countries.  A 
domicile  may  be  changed  by  taking  up  a  residence  in  another 
country  with  the  intention  of  remaining  there.  Mere  absence 
from  a  previously  fixed  residence  does  not  involve  a  change  of 
domicile  without  an  intention  duly  declared.  "  Students  are 
not  considered  as  acquiring  a  domicile  in  the  place  where  they 
sojourn  merely  for  the  purpose  of  prosecuting  their  studies. 
Servants  may  or  may  not  have  the  same  domicile  as  their 
masters,  according  to  the  particular  circumstances  of  the  case."  ^ 

90.  Extradition. — By  extradition  is  meant  the  delivery,  to 
accredited  authorities,  of  criminal  fugitives  or  persons  accused 
of  crime  committed  in  one  country,  upon  the  request  of  the 
government  of  the  country  in  which  the  crime  was  committed, 
by  the  government  of  the  country  in  which  they  have  sought 
refuge.  This  is  not  considered  to  be  an  obligation  under  inter- 
national law  but  is  one  proceeding  from  treaty  obligations,  or 
one  that  is  granted  as  a  matter  of  comity  and  mutual  conve- 
nience. As  to  the  United  States,  it  has  been  ruled  by  Attorney- 
General  Legare  that  without  the  consent  of  Congress  no  State 
of  the  Union  can  enter  into  any  agreement,  express  or  implied, 
to  deliver  up  fugitives  from  the  justice  of  a  foreign  state  who 
may  be  found  within  its  limits.^ 

As  a  rule,  states  refuse  to  extradite  their  own  citizens  or  sub- 
jects.    England  and  the  United  States  are  exceptions  to  this 

»  Westlake,  "Private  Int.  Law,"  sees.  243,  253. 
« ILillcok,  Baker'H  4th  (m1.,  vol.  I,  p.  456. 
«  Legare,  Att.-Gen.,  1841,  3  Op.  GGl. 


190  STATES  IN  INTERNATIONAL  LAW 

rule.  This  arises  from  the  fact  that  so  far  as  the  United  States 
is  concerned,  we  do  not,  except  in  case  of  such  international 
crimes  as  piracy  and  the  slave-trade,  punish  our  citizens  for 
crimes  committed  beyond  our  territory  and  England  punishes 
her  subjects  only  for  such  crimes  as  treason,  murder,  bigamy, 
etc.,  when  committed  abroad. 

In  the  absence  of  a  clause  expressly  exempting  nationals 
from  extradition,  the  State  Department  at  Washington  holds 
that  they  should  be  surrendered  upon  demand.^ 

This  ruling  was  upheld  in  the  recent  case  of  Charlton,  an 
American,  who  was  extradited  to  Italy,  being  charged  with 
the  murder  of  his  wife  at  Lake  Como,  notwithstanding  that 
Italy  had  previously  refused  to  deliver  up  her  subjects  to  the 
United  States,  the  extradition  treaty  between  the  two  countries 
containing  no  such  exemption. 

It  is  now  considered  to  be  an  established  rule  that  a  criminal 
must  be  tried  only  for  the  offence  named  in  the  demand  for 
extradition.  Political  offenders  are  not  subjects  for  extradi- 
tion according  to  established  usages.  Just  what  may  be  called 
a  political  offender  is  somewhat  difficult  to  define,  and  with  us 
a  committing  magistrate  has  jurisdiction  and  it  becomes  his 
duty  to  determine  whether  the  offence  charged  is  or  is  not  of  a 
political  character. 

Some  cases  are  given  in  the  following  paragraphs,  which  show 
the  difficulties  attending  the  subject  of  political  offenders, 
especially  if  attended  with  the  charge  of  murder. 

"In  June,  1894,  the  British  Government,  after  full  considera- 
tion of  the  question  by  the  court  of  Queen's  Bench,  delivered  up 
to  France  a  fugitive  from  justice  who  was  charged  with  causing 
the  explosion  at  the  Cafe  Very,  in  Paris,  as  well  as  another 
explosion  at  certain  government  barracks.  The  court  held 
'that  in  order  to  constitute  an  offence  of  a  political  character, 
there  must  be  two  or  more  parties  in  the  state,  each  seeking 
to  impose  the  government  of  their  own  choice  on  the  other* 
» Hershey's  "Essentials,"  p.  265. 


NATIONALITY.    ALIENS.    EXTRADITION  191 

and  that  the  offence  must  be  'committed  by  one  side  or  the 
other  in  pm-suance  of  that  object.'"* 

"An  interesting  case  occurred  on  March  31,  1891,  in  Buenos 
Ayres,  in  regard  to  a  mutiny  which  occurred  on  board  the 
Chilian  gunboat  Pilcomayo,  then  lying  at  the  docks.  At  the 
request  of  the  commanding  officer  twelve  of  the  mutineers  were 
taken  in  charge  by  the  local  police,  with  the  further  request 
from  the  Chilian  minister  that  they  be  held  in  custody  until 
the  Pilcomayo  was  ready  to  sail  for  Chile,  in  order  that  they 
might  be  taken  there  for  trial.  The  Pilcomayo  was  being  par- 
tially dismantled  at  the  time  by  the  order  of  the  Chilian  Gov- 
ernment, after  which  she  was  to  be  taken  to  Chile  and  placed 
out  of  service.  The  mutineers  obtaining  a  writ  of  habeas  cor- 
pus, the  judge  of  the  federal  court  decided  that  the  exemption 
of  a  man-of-war  from  the  local  jurisdiction  did  not  extend  to 
the  conferring  of  jurisdiction  over  persons  in  foreign  territory 
in  charge  of  foreign  authorities  and  that  the  Chilian  minister, 
by  requesting  the  men  to  be  taken  from  on  board  the  vessel  of 
war  under  the  Chilian  flag  and  placed  in  the  custody  of  the 
Argentine  authorities,  had  lost  the  right  to  remove  them  to 
Chile  and  have  them  tried  there.  It  was  also  intimated  that 
by  dismantlement  the  Pilcomayo  had  lost  its  character  as  a 
vessel  of  war.  On  appeal  from  this  decision  the  Supreme  Court 
of  the  Argentine  Republic  'held  that  as  the  mutiny  appeared 
to  be  for  political  reasons,  it  was  to  be  considered  as  a  political 
offence;  that  as  the  mutineers  were  brought  on  shore  and  de- 
livered to  the  Argentine  authorities  because  of  the  inability 
to  retain  them  on  board  the  vessel,  their  return  to  the  rep- 
resentative of  Chile  could  not  be  granted  without  violating 
the  exemption  of  political  offenders  from  extradition;  that 
their  delivery  up  would  also  violate  the  principle  of  public 
law,  which  protects  prisoners  of  war,  whether  public  or  insur- 
rectionary, from  surrender;  and  that  it  is  a  rule  of  international 
law  that  where  acts  of  hostility  are  committed  by  foreign  in- 
1  Moore's  "Digest,"  vol.  IV,  p.  354. 


192  STATES  IN  INTERNATIONAL  LAW 

surgents  in  territorial  waters  of  another  state,  only  the  vessels 
or  things  taken  from  them,  and  not  the  persons,  are  to  be 
delivered  up.'"^ 

91.  Extradition  of  Deserters. — In  regard  to  the  arrest  or 
extradition  of  deserters  from  ships  of  war,  it  has  been  held 
both  by  the  State  Department  and  the  federal  courts  that  in 
the  absence  of  treaties  to  that  effect  officials  of  the  United 
States  cannot  at  home  arrest  foreign  seamen  as  deserters  from 
foreign  vessels,  even  upon  the  request  of  the  consular  or  other 
officers  of  foreign  governments,  and  that  it  is  naturally  im- 
proper in  reciprocal  cases  for  our  consular  or  other  authorities 
to  cause  foreign  officials  to  arrest  deserters  from  our  ships  in 
the  absence  of  treaties  authorizing  and  providing  for  such  arrest. 

In  the  case  of  Tucker  v.  Alexandroff  there  were  circumstances 
surrounding  this  case  which  involve  several  interesting  questions 
as  to  the  return  and  extradition  of  a  deserter,  so  that  it  is  con- 
sidered desirable  to  narrate  the  matter  in  full  as  given  by 
Moore  in  his  "Digest." 

"  Leo  Alexandroff,  a  conscript  in  the  Russian  naval  service, 
was  sent  in  October,  1899,  as  one  of  the  detail  of  fifty-three 
men  under  command  of  an  officer,  from  Russia  to  Philadelphia, 
to  take  possession  of  and  man  the  Russian  cruiser  Variag,  then 
under  construction  by  the  firm  of  Cramp  &  Sons  in  that  city. 
.  .  .  The  Variag  was  still  on  the  stocks  when  the  detail  of 
men  arrived  in  Philadelphia.  She  was  launched  in  October  or 
November,  1899,  and  was  lying  in  the  stream  still  under  con- 
struction, not  having  been  accepted  by  the  Russian  Govern- 
ment, when  on  April  20,  1900,  Alexandroff  went  to  New  York 
and  declared  his  intention  to  become  a  citizen  of  the  United 
States.  He  was  subsequently  arrested  upon  the  written  re- 
quest of  the  Russian  vice-consul,  and  on  June  1,  1900,  was 
committed  on  a  charge  of  desertion.  By  Article  IX  of  the 
treaty  between  the  United  States  and  Russia  of  1832,  the  con- 
sular representatives  of  the  contracting  parties  were  authorized 
1  Moore's  "Digest,"  vol.  IV,  pp.  351-2. 


NATIONALITY.    ALIENS.    EXTRADITION  193 

to  require  the  assistance  of  the  local  authorities  for  the  recov- 
ery of  'deserters  from  the  ships  of  war  and  merchant  vessels 
of  their  country';  and  it  was  stipulated  that  for  this  purpose 
they  should  apply  to  the  competent  tribunals,  and  *in  writing 
demand  said  deserters,  proving,  by  the  exliibition  of  the  regis- 
ters of  the  vessels  and  rolls  of  the  crews  or  by  other  official 
documents  established,  that  such  individuals  formed  part  of 
the  crews.'  Alexandroff  was  committed  under  Section  5280, 
Revised  Statutes  of  the  United  States,  which  provides,  in  lan- 
guage similar  to  that  just  quoted,  for  the  recovery  of  deserters 
from  vessels  of  governments  having  treaties  with  the  United 
States  on  the  subject.  It  was  contended  that  the  treaty  and 
statute  were  inapplicable  to  Alexandroff  for  the  reasons  (1) 
that  the  Variag  was  not  yet  a  Russian  ship  of  war,  (2)  that  he 
was  not  a  deserter  from  such  ship,  and  (3)  that  his  membership 
of  the  crew  was  not  proved  by  the  exhibition  of  the  register  of 
the  vessel,  her  crew  roll,  or  by  any  oflScial  document.  It  was 
held,  however,  by  the  court  that  the  Variag,  inasmuch  as  she 
had  been  launched  and  was  lying  in  the  stream  when  Alexan- 
droff deserted,  was  a  ship  within  the  meaning  of  the  treaty; 
that  she  w^as  also  a  Russian  ship  of  war  within  the  meaning  of 
the  treaty,  notwithstanding  that  she  had  not  been  finally  ac- 
cepted and  taken  possession  of  by  the  Russian  Government 
and  that  the  Russian  fiag  had  never  been  hoisted  upon  her; 
that  Alexandroff  consequently  was  a  deserter  from  a  Russian 
ship  of  war  within  the  meaning  of  the  treaty;  and  that,  as  it 
was  admitted  and  appeared  by  the  record  in  the  case,  Alex- 
androff came  to  the  United  States  as  a  member  of  the  Russian 
navy  for  the  express  purpose  of  becoming  one  of  the  crew  of 
the  Variag,  it  could  not  properly  be  objected  in  his  behalf 
that  no  official  documents  were  produced,  especially  as  it  ap- 
peared that  on  the  trial  of  the  case  below,  Alexandroff,  through 
his  counsel,  waived  the  production  of  the  passport  issued  by  the 
Russian  Government  to  the  men  detailed  to  man  the  vessel."  ^ 
»  Stockton's  "Manual,"  pp.  74r-77. 


194  STATES  IN  INTERNATIONAL  LAW 


TOPICS  AND  REFERENCES 

1.  Nationality  in  General — 

Moore's  "Digest  of  International  Law,"  vol.  Ill,  chap.  X.  Philli- 
more,  "International  Law,"  3d  ed.,  vol.  I,  443,  444.  Oppenheim, 
2d.  ed.,  vol.  I,  306,  369-374. 

2.  Citizenship  by  Birth — 

Taylor,  "International  Law,"  212.  Moore's  "Digest,"  vol.  Ill, 
276-289.     Hall,  6th  ed.,  221-6. 

3.  Naturalization — 

Wheaton,  8th  ed.,  Dana,  142,  etc.  Moore's  "Digest,"  vol.  Ill, 
297-358.     Holland's  "Jurisprudence,"  10th  ed.,  361,  364. 

4.  Aliens — 

Moore's  "Digest,"  vol.  IV,  237;  vol.  II,  p.  79.  Wheaton,  8th  ed., 
Dana,  138,  139,  220.     Lawrence's  "Principles,"  4th  ed.,  222-5. 

5.  Domicile  in  Time  of  Peace — 

Moore's  "Digest,"  vol.  Ill,  811-835.  Hall,  6th  ed.,  238-241,  277. 
Jacobs,  "Law  of  Domicile,"  1887. 

6.  Extradition — 

Moore's  "Extradition,"  1891.  Piggott,  "Extradition,"  1910. 
Biron  and  Chalmers,  "The  Law  and  Practice  of  Extradition," 
1903. 


PART  III 

INTERCOURSE  OF  STATES  IN  TIME 

OF  PEACE 

CHAPTER  X 

THE    HEAD  OF  THE  STATE.    DIPLOMATIC  INTERCOURSE. 
THE  RIGHT  OF  ASYLUM  IN  LEGATIONS  AND  EMBASSIES 

92.  The  Head  of  the  State. — "  When  a  state  has  an  indi- 
vidual head,  he  is  to  be  considered  as  a  representative,  or 
rather  embodiment,  of  the  sovereignty  of  the  state,  and  he  is 
entitled  as  a  consequence  to  respectful  personal  consideration 
from  the  other  states  of  the  family  of  nations  and  from  their 
representatives.  As  the  object  of  this  consideration  is  to  ex- 
press the  respect  due  to  a  sovereign  state,  any  international 
omission  to  comply  with  the  customary  and  proper  observances 
must  be  regarded  as  an  insult  to  the  state  which  it  has  a  right 
to  resent."^ 

Furthermore,  as  emperor,  king,  or  president  he  is,  as  head  of 
the  state,  the  peer  legally  of  the  head  of  any  other  state  and 
is  the  organ  or  supreme  representative  of  the  state  with  respect 
to  foreign  and  exterior  relations.  For  instance,  Napoleon  HI 
of  France  and  Francis  Joseph  of  Austria,  each  exercising  of  his 
own  right  sovereign  powers,  met  and  signed  the  preliminary 
peace  of  Villafranca  in  1859. 

The  chief  agent  of  a  state  subordinate  to  its  head  in  its 

foreign  relations,  residing  at  home,  is  the  person  to  whom  the 

'  Snow's  "Int.  Law,"  cd.  by  Stockton,  2d  ed.,  p.  58. 

195 


196  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

immediate  and  detailed  management  of  foreign  affairs  is  com- 
mitted. This  person  in  the  United  States  is  the  cabinet  min- 
ister who  is  at  the  head  of  the  Department  of  State,  and  who 
is  known  as  the  secretary  of  state. 

Under  this  agent  are  other  officials  or  agents,  resident  in 
foreign  countries,  who  represent  the  state  in  a  public  capacity, 
and  are  known  as  its  diplomatic  and  consular  officials. 

The  secretary  or  minister  for  foreign  affairs,  under  the  head 
of  the  state,  is  also  charged  with  all  affairs  with  which  the 
members  of  the  diplomatic  corps — resident  at  the  seat  of  gov- 
ernment of  his  country — are  concerned. 

93.  Immunities  of  the  Head  of  a  State. — It  has  not  been 
an  uncommon  thing  either  in  past  or  present  history  for  the 
sovereign  or  head  of  a  state  to  visit  another  sovereign  for  pur- 
poses of  friendship,  for  discussions  of  state  policy,  or  for  the 
outlining  of  important  negotiations  or  alliances.  Under  these 
circumstances  the  head  of  a  state  can  be  considered  as  being 
engaged  in  the  highest  diplomatic  business  of  the  state. 

Whether  a  head  of  the  state  enters  another  state  for  this  or 
any  other  purpose,  he  is,  as  a  head  of  a  state,  entitled  to 
certain  rights  and  immunities  in  time  of  peace  between  the 
states  concerned,  which  can  properly  be  mentioned  at  this 
time.  If  the  sovereign  or  head  of  a  state  is  duly  recognized 
as  such  he  is  entitled  to  be  treated,  especially  by  the  public 
functionaries  of  another  state,  with  consideration  and  respect 
and  to  be  addressed  with  the  proper  titles  assigned  to  him  by 
his  own  country.  The  president  of  a  republic,  when  he  rep- 
resents the  republic,  is  entitled  to  the  same  rank,  considera- 
tion, and  honors  as  a  sovereign.  Heads  of  a  state  are  exempt 
from  the  civil  and  criminal  jurisdiction  of  the  country  and 
are  entitled  to  seek  redress  in  the  courts  of  justice  of  the 
country  for  libel  upon  their  character.  If,  however,  they 
should  abuse  the  hospitality  of  the  state,  they  may  be  re- 
quested or  ordered  to  depart  from  its  territory  without  delay. 

By  accepted  usage,  the  movable  effects  of  the  head  of  a  state 


THE  HEAD  OF  THE  STATE  '197 

are  exempt  from  the  payment  of  custom  duties  and  from  the 
visitation  of  custom-house  officers. 

The  immunities  of  the  head  of  a  state  or  sovereign  cease 
with  the  termination  of  his  office  by  time,  abdication,  or  deposi- 
tion. This  was  the  case  of  ex-President  Castro  of  Venezuela. 
Wliile  travelhng  abroad  in  Europe  he  was  deposed  after  a  suc- 
cessful revolution,  and  upon  the  recognition  of  the  new  govern- 
ment by  the  countries  concerned  he  ceased  to  have  any  immuni- 
ties. 

94.  Diplomatic  Intercourse. — In  a  previous  chapter  I  have 
said  that  the  duties  of  a  state  include  a  recognition  of  the 
obligations  of  good  faith,  of  a  redress  for  wrongs,  and  of  good- 
will, comity,  and  courtesy  in  their  intercourse.  This,  of  course, 
presupposes  an  intercourse  between  nations  of  an  official  na- 
ture as  distinguished  from  personal,  commercial,  and  other 
intercourse.  This  official  intercourse  is  known  as  diplomatic 
intercourse  and  is  founded  upon  what  is  termed  technically 
the  right  of  legation.  By  the  right  of  legation  is  generally 
meant  the  right  of  a  state  to  send  and  receive  diplomatic  offi- 
cials for  the  purposes  of  negotiation,  for  the  observation  of  all 
matters  in  which  the  home  states  are  interested,  and,  finally, 
for  the  protection  of  persons,  property,  and  interests  of  the 
country  within  the  territory  of  the  countries  to  which  they  are 
severally  accredited. 

This  right  of  legation  existed  before  modern  international 
law  was  known.  Diplomatic  agents  or,  as  they  were  then  gen^ 
erally  called,  "ambassadors,"  enjoyed  in  early  days  special 
duties,  special  protection,  and  peculiar  privileges.  They  were 
not,  however,  permanently  placed  in  the  various  countries, 
permanent  legation,  as  we  understand  it,  being  unknown  until 
late  in  the  Middle  Ages. 

The  use  of  permanent  legation  created  diplomatic  officials, 
and  as  Oppenheim  says:  "  Although  the  art  of  diplomacy  is  as 
old  as  official  intercourse  between  states,  such  a  special  class 
of  officials  as  are  now  called  diplomatists  did  not  and  could 


198  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

not  exist  until  permanent  legations  had  become  a  general  in- 
stitution. In  this  as  in  other  cases,  the  oflfice  has  created  the 
class  of  men  necessary  for  it."^ 

The  right  of  legation,  as  a  general  rule,  extends  only  to  full 
sovereign  states.  Other  states,  such  as  part-sovereign  states 
and  uncivilized  peoples,  possess  the  right  in  a  conditional  way 
alone.  No  state  is  obliged  to  send  diplomatic  agents,  although 
practically  all  states  do  send  them  where  the  intercourse  justi- 
fies it.  It  is,  of  course,  impossible  for  any  state  to  receive 
diplomatic  agents  from  two  claimants  to  the  headship  of  the 
same  foreign  state. 

On  account  of  the  growth  and  rapidity  of  communication 
between  nations  caused  by  railways  and  steamships,  by  tele- 
phone and  telegraph,  it  has  been  argued  that  the  use  of  diplo- 
matic agents  has  greatly  diminished  in  value,  or  in  minor  coun- 
tries entirely  passed  away.  But,  on  the  other  hand,  it  can  be 
said  that  this  rapidity  of  communication  creates  a  greater  in- 
terchange of  persons  between  countries  and  a  greater  inter- 
weaving of  interests,  of  trade,  and  of  all  matters  that  are  ca- 
pable of  transit.  As  a  former  secretary'  of  state  has  well  said: 
"One  reason  why  the  value  and  importance  of  the  diplomatic 
service  are  not  readily  recognized  is  because  its  work  is  carried 
on  quietly  and  usually  without  the  knowledge  of  the  public. 
It  is  almost  always  the  handmaid  of  peace  and  good-will. 
Very  many  more  international  controversies  are  settled  by 
the  unobtrusive  or  secret  methods  of  diplomacy  than  by  either 
arbitration  or  war."^ 

The  existence  of  war  between  two  countries  does  not  excuse 
a  state  from  receiving  an  embassy  from  the  other  belligerent. 
Such  embassy  would  be  for  negotiation  but  not  for  other  than 
temporary  residence. 

In  the  relations  with  the  navy  there  is  independence  on 
both  sides  in  both  the  diplomatic  and  naval  services.     Any 

^  Oppenheim,  2d  ed.,  vol.  I,  p.  439. 

«  Foster,  "Practice  of  Diplomacy,"  p.  6. 


THE  HEAD  OF  THE  STATE  199 

joint  action  carries  with  it  separate  responsibility  on  the  part 
of  each  official  to  the  head  of  his  department. 

The  regulations  of  the  navy  covering  this  subject  are  given 
in  full  under  the  head  of  consuls,  to  whom  such  matters  equally 
apply. 

95.  The  Appointment  and  Reception  of  Embassies  or  Diplo- 
matic Agents. — States  which  have  the  right  to  send  embassies 
or  diplomatic  agents  have  the  right  to  receive  them.  Although 
a  state  may  have  the  right  to  receive  and  to  send  an  embassy, 
there  is  no  obligation  to  send  or  to  receive  an  embassy  with- 
out regard  to  circumstances. 

If  an  embassy  should  have  a  mischievous  purpose  or  an  es- 
pecially objectionable  ambassador  or  diplomatic  agent,  that 
particular  embassy  can  be  refused  entry  into  a  territory  of  a 
state  or  a  reception  at  its  capital  or  court.  The  reasons  for 
such  refusal  or,  rather,  a  reason  for  such  refusal  should  be  given, 
and  arbitrary  action  without  reason  is  regarded  as  improper. 

Most  countries  decline  to  receive  their  own  subjects  or  cit- 
izens as  diplomatic  agents.  The  term  persona  non  grata  is 
generally  applied  to  those  whose  reception  is  refused,  which 
expression  can  be  defined  as  meaning  a  person  who  is  not  ac- 
ceptable on  political  or  personal  grounds. 

The  laws  of  the  United  States  forbid  the  appointment  of 
any  one  other  than  a  citizen  of  the  United  States  to  the  diplo- 
matic service.  Generally  it  is  a  rule  with  the  State  Depart- 
ment that  no  citizen  of  the  United  States  shall  be  received  as 
a  diplomatic  representative  of  a  foreign  government.  This 
rule  was,  however,  suspended  in  the  case  of  Mr.  Burlingame, 
who  was  the  head  of  a  diplomatic  delegation  from  China,  and 
in  the  case  of  Mr.  Camacho,  a  native  of  Venezuela  but  a  nat- 
uralized citizen  of  the  TJnited  States,  who  was  received  as  a 
minister  from  Venezuela  in  1880. 

No  state  is  bound  to  receive  a  papal  legate  or  nuncio,  es- 
pecially if  his  instructions,  or  the  general  canon  law,  give  him 
powers  injurious  to  an  established  church,  or  one  of  another 


200     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

faith,  or  to  the  sovereignty  of  the  state  over  all  causes  ecclesi- 
astical as  well  as  civil.  The  Protestant  states  have  never  re- 
ceived a  permanent  legation  from  the  popes,  even  when  the 
latter  were  heads  of  a  state,  and  they  still  observe  this  rule, 
although  one  of  them,  Germany,  keeps  a  permanent  legation 
at  the  Holy  See.  Italy  refused,  in  1885,  to  receive  Mr.  Keiley 
as  minister  from  the  United  States  of  America  because  he  had, 
as  an  individual,  in  1871,  protested  against  the  annexation  of 
the  Papal  States  by  Italy. 

The  sex  of  the  diplomatic  agent  is  not  essentially  objection- 
able, as  women  have  at  times  acted  in  the  capacity  of  ambas- 
sadors or  diplomatic  agents.  The  league  of  Cambrai,  in  1508, 
was  signed  by  Margaret  of  Austria  in  the  name  of  her  brother, 
Charles  V.  In  the  same  place,  Louisa  of  Savoy,  mother  of 
Francis,  signed  a  peace  sometimes  called  Les  Traiies  des  Dames. 

The  fact  of  the  ambassador  not  being  a  native  of  the  state 
which  sent  him  would  not  alone  afford  a  reasonable  cause  for 
refusal.  In  1871  Count  Beust,  who  had  been  a  subject  of  the 
King  of  Saxony  and  very  recently  prime  minister  of  that  coun- 
try, was  received  by  Great  Britain  as  ambassador  from  Austria. 
In  order  to  prevent  unpleasant  incidents  arising  from  rejection 
of  a  diplomatic  agent  by  the  state  to  which  he  is  accredited, 
it  is  customary  to  make  confidential  inquiries  as  to  his  accepta- 
bility to  the  government  of  the  country.  This  practice  is 
usually  known  as  that  of  Vagreation. 

Another  case  as  to  rejection  by  a  foreign  country  of  an  ap- 
pointed minister  was  that  of  the  Honorable  H,  W.  Blair,  who 
after  a  long  and  successful  career  in  the  United  States  Senate 
was  appointed  and  confirmed  as  minister  to  China.  The  Chi- 
nese Government  refused  to  accept  him  on  the  ground  that  he 
had  voted  for  the  Chinese  exclusion  act.  As  China  persisted 
in  holding  that  his  assuming  the  position  of  minister  at  Peking 
"might  be  detrimental  to  the  intercourse  of  the  two  nations," 
Mr.  Blair  finally  resigned  his  commission  before  he  had  sailed 
from  the  United  States. 


THE  HEAD  OF  THE  STATE  201 

If  a  diplomatic  agent  is  obliged  to  pass  through  a  third  coun- 
try on  the  way  to  his  post,  he  is  accorded  as  a  matter  of  comity 
the  immunities  of  an  envoy  while  in  transit.  In  case  of  war 
in  the  country  through  which  he  is  passing,  or  for  other  cir- 
cumstances, this  privilege  of  free  and  unrestricted  transit  may 
be  limited. 

The  case  of  Mr.  Soule,  American  minister  to  Spain  in  1854, 
illustrates  a  case  of  restriction.  Mr.  Soule  was  born  in  France 
but  became  a  naturalized  citizen  of  Louisiana;  after  his  arrival 
in  Spain  he  took  affront  at  the  conduct  of  the  French  ambas- 
sador and  two  duels  resulted  in  which  Mr.  Soule  and  his  son 
were  engaged.  Afterward,  when  en  route  from  England  to 
Spain,  he  was  detained  in  France  at  Calais.  Upon  complaint, 
the  French  Government  stated  that  the  government  recog- 
nized the  privilege  of  the  envoy  to  traverse  French  territory, 
but  that  ]\Ir.  Soule's  antecedents  awakened  the  attention  of 
the  authorities,  and  that  in  the  interests  of  public  order  if  he 
went  direct  to  Madrid  the  route  by  France  was  open  to  him, 
but  that  a  stay  in  Paris  would  not  be  allowed.  Mr.  Soule  re- 
turned to  England  and  reached  Spain  by  another  route  and 
the  incident  was  thus  closed.  Mr.  Foster  states  that  this 
affair  "simply  afforded  Louis  Napoleon  the  opportunity  and 
gratification  of  manifesting  his  hostility  toward  an  intemperate 
diplomatist."^ 

"In  case  a  state  does  not  object  to  the  reception  of  a  person 
as  diplomatic  envoy  accredited  to  itself,  his  actual  reception 
takes  place  as  soon  as  he  has  arrived  at  the  place  of  his  designa- 
tion. But  the  mode  of  reception  differs  according  to  the  class 
to  which  the  envoy  belongs.  If  he  be  one  of  the  first,  second, 
or  third  class,  it  is  the  duty  of  the  head  of  the  state  to  receive 
him  solemnly  in  a  so-called  public  audience  with  all  the  usual 
ceremonies.  For  that  purpose  the  envoy  sends  a  copy  of  his 
credentials  to  the  foreign  office,  which  arranges  a  special  audi- 
ence with  the  head  of  the  state  for  the  envoy  when  he  delivers 
•  Foster,  "The  Practice  of  Diplomacy,"  pp.  53-54. 


202     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

in  person  his  sealed  credentials.^  If  the  envoy  be  a  charge 
d'affaires  only,  he  is  received  in  audience  by  the  secretary  of 
foreign  affairs,  to  whom  he  hands  his  credentials.  Through 
the  formal  reception  the  envoy  becomes  officially  recognized 
and  can  officially  commence  to  exercise  his  functions.  But 
such  of  his  privileges  as  exterritoriality  and  the  hke,  which 
concern  the  safety  and  inviolability  of  his  person,  must  be 
granted  even  before  his  official  reception,  as  his  character  as 
diplomatic  envoy  is  considered  to  date  not  from  the  time  of 
his  official  reception  but  from  the  time  when  his  credentials 
were  handed  to  him  on  leaving  his  home  state,  his  passports 
furnishing  sufficient  proof  of  his  diplomatic  character." ^ 

96.  Rank  and  Classification  of  Diplomatic  Officials. — "For 
the  sake  of  convenience  and  uniformity  in  determining  the 
relative  rank  and  precedence  of  diplomatic  representatives, 
the  Department  of  State  has  adopted  and  prescribed  the  seven 
rules  of  the  congress  of  Vienna  found  in  the  protocol  of  the 
session  of  March  9,  1815,  and  the  supplementary  or  eighth 
rule  of  the  congress  of  ALx-la-Chapelle  of  November  21,  1818. 
They  are  as  follows: 

"  In  order  to  prevent  the  inconveniences  which  have  fre- 
quently occurred,  and  which  might  again  arise,  from  claims 
of  precedence  among  different  diplomatic  agents,  the  plenipo- 
tentiaries of  the  powers  who  signed  the  treaty  of  Paris  have 
agreed  on  the  following  articles,  and  they  think  it  their  duty 
to  invite  the  plenipotentiaries  of  other  crowned  heads  to  adopt 
the  same  regulations: 

"Article  I.  Diplomatic  agents  are  divided  into  three  classes: 
that  of  ambassadors,  legates,  or  nuncios;  that  of  envoys,  min- 
isters, or  other  persons  accredited  to  sovereigns;  that  of 
charges  d'affaires  accredited  to  ministers  for  foreign  affairs. 

"Article  11.  Ambassadors,  legates,  or  nuncios  only  have 
the  representative  character. 

^  Twiss,  I,  sec.  215,  and  Rivier,  I,  p.  467. 
» Oppenheim,  "Int.  Law,"  p.  451,  art.  376. 


THE  HEAD  OF  THE  STATE  203 

"Article  III.  Diplomatic  agents  on  an  extraordinary  mis- 
sion have  not,  on  that  account,  any  superiority  of  rank. 

"Article  IV.  Diplomatic  agents  shall  take  precedence  in 
their  respective  classes  according  to  the  date  of  the  oflBcial 
notification  of  their  arrival.  The  present  regulation  shall  not 
cause  any  innovation  with  regard  to  the  representative  of  the 
Pope. 

"Article  V.  A  uniform  mode  shall  be  determined  in  each 
state  for  the  reception  of  diplomatic  agents  of  each  class. 

"x\rticle  VI.  Relations  of  consanguinity  or  of  family  alli- 
ance between  courts  confer  no  precedence  on  their  diplomatic 
agents.    The  same  rule  also  applies  to  political  alliances. 

"Article  VII.  In  acts  or  treaties  between  several  powers 
which  grant  alternate  precedence,  the  order  which  is  to  be  ob- 
served in  the  signatures  shall  be  decided  by  lot  between  the 
ministers. 

"Article  VIII.  It  is  agreed  that  ministers  resident  accred- 
ited to  them  shall  form,  with  respect  to  their  precedence,  an 
intermediate  class  between  ministers  of  the  second  class  and 
charges  d'affaires. 

"The  diplomatic  representatives  of  the  United  States  are 
of  the  first,  the  second,  the  intermediate,  and  the  third  classes, 
as  follows: 

"(o)  Ambassadors  extraordinary  and  plenipotentiary. 

*  (&)  Envoys  extraordinary  and  ministers  plenipotentiary  and 
special  commissioners,  when  styled  as  having  the  rank  of  envoy 
extraordinary  and  minister  plenipotentiary. 

"(c)  Ministers  resident. 

"These  grades  of  representatives  are  accredited  by  the  Presi- 
dent. 

"((f)  Charges  d'affaires  commissioned  by  the  President  as 
such  are  accredited  by  the  secretary  of  state  to  the  minister 
for  foreign  affairs  of  the  government  to  which  they  are  sent. 

"In  the  absence  of  the  head  of  the  mission  the  secretary 
acts  ex  officio  as  charge  d'affaires  ad  interim  and  needs  no 


204     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE  - 

special  letter  of  credence.  In  the  absence,  however,  of  a  sec- 
retary and  second  secretary,  the  secretary  of  state  may  desig- 
nate any  competent  person  to  act  ad  interim,  in  which  case  he 
is  specifically  accredited  by  letter  to  the  minister  for  foreign 
affairs."  ^ 

The  subordinate  officers  of  the  United  States  to  the  diplo- 
matic representative  are  the  secretaries  of  embassies  and  lega- 
tions of  the  United  States  who  have  their  equivalents  in  the 
counsellor  or  chancellors  of  foreign  diplomatic  services.  Subor- 
dinate secretaries  are  numbered  in  order  of  their  precedence, 
while  the  military  and  naval  attaches  rank  next  and  after  the 
first  secretaries  of  the  embassy  and  legations,  as  these  latter 
may  become  ex  officio  charges  d'affaires  in  the  absence  of  the 
head  of  the  mission.  Among  themselves  they  rank  as  they 
would  do  when  engaged  in  any  joint  service. 

97.  The  Duties  of  Diplomatic  Officials. — The  duties  of 
diplomatic  envoys  can  be  comprehended  in  a  general  way 
under  three  heads:  that  of  negotiation,  that  of  observation, 
and  that  of  protection  to  persons  and  interests.  But  beyond 
this  classification  come  many  duties  that  are  more  or  less  in- 
definable, such  as  the  cultivation  of  friendly  relations,  etc. 

"As  the  agent  of  his  home  government  the  envoy  takes  charge 
of  all  communications  between  the  two  states  on  the  part  of 
his  home  government  and  is  both  counsel  and  advocate  of 
his  country  in  regard  to  any  negotiations  between  the  two 
states  that  are  pending  or  that  may  arise  in  the  future.  In  the 
great  mutual  agreements  between  the  civilized  nations  of  a 
continent  or  the  world,  he  is  an  important  link  in  notification 
and  arrangement.  As  for  the  negotiation  of  treaties,  it  has 
been  well  said  that  it  is  the  highest  function  which  a  diplomatic 
representative  is  called  upon  to  discharge,  and  the  one  which 
requires  the  greatest  skill  and  circumspection  on  his  part.  .  .  . 
As  indicating  the  broad  scope  of  this  branch  of  international 
law  and  comity,  it  may  be  stated  that  the  treaties  of  the 
1  "Instructions  to  Diplomatic  Officers  of  U.  S.,"  pp.  7,  8. 


THE  HEAD  OF  THE  STATE  205 

United  States  with  other  nations  now  in  force  alone  exceed 
three  hundred  in  number."^ 

An  envoy  is  also  charged  with  the  observation  of  all  matters 
of  interest  and  importance  to  his  home  state  occurring  in  the 
nation  to  which  he  is  accredited.  He  should  keep  his  home 
government  well  informed  in  regard  to  the  public  opinion,  the 
readiness  for  war,  the  commerce  and  industry,  and  the  general 
attitude  of  the  country  toward  his  own.  It  is  generally  con- 
ceded that  no  state  that  receives  a  diplomatic  agent  has  a  right 
to  prevent  him  from  exercising  the  function  of  such  observation 
and  report,  unless  it  is  done  in  an  objectionable  manner  or  in 
regard  to  matters  withdrawn  from  ordinary  observation. 

A  third  and  with  us  a  constant  function  of  the  diplomatic 
envoy  is  the  protection  of  persons,  property,  and  interests  of 
such  nationals  of  the  home  state  as  are  living  or  are  found 
within  the  boundaries  of  the  state  to  which  this  representative 
is  accredited.  This  protection  is  limited  by  the  regulations  of 
his  own  state  and  by  the  general  municipal  law  of  the  state 
to  which  he  is  accredited  in  regard  to  aliens.  The  relations  of 
the  diplomatic  agent  over  the  consular  agents  of  the  same  coun- 
try is  with  most  countries  one  of  full  authority  and  control, 
but  with  the  United  States  it  is  one  of  supervision  alone. 
There  are,  in  addition,  numberless  minor  duties  of  a  miscellane- 
ous nature,  which  vary  with  the  number  of  resident  and  travel- 
ling Americans  and  their  varying  wants  and  needs. 

Though  it  may  be  one  of  the  duties  of  the  diplomatic  official 
to  watch  the  course  of  political  events  and  the  action  of  the 
political  parties  and  report  such  observations  to  the  home 
government,  he  has  no  right  whatever  to  share  in  the  political 
life  of  the  state  or  to  encourage  one  party  or  threaten  another. 
No  self-respecting  state  would,  if  able,  allow  any  foreign  envoy 
to  exercise  such  interference  but  would  either  request  his  recall 
or,  if  necessary,  deliver  to  him  his  passports  and  dismiss  him. 

The  case  of  Lord  Sackville-West  was  one  somewhat  in  point. 
*  Foster's  "Practice  of  Diplomacy,"  pp.  243-4. 


206     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

During  the  presidential  campaign  of  1888  a  letter  marked 
private  was  mailed  in  California  to  Lord  Sackville,  purporting 
to  be  from  a  citizen  of  English  birth,  asking  advice  as  to  the 
presidential  candidate  most  favorable  to  British  interests. 
Lord  Sackville,  in  his  reply,  also  marked  private,  stated  that 
any  political  party  which  openly  favored  the  mother  country 
would  lose  popularity  but  indicated  that  President  Cleveland's 
election  would  be  more  likely  to  promote  British  interests.  . 

The  letter  proved  to  be  a  wretched  decoy  to  entrap  the 
minister,  and  his  reply  was  at  once  published  in  the  news- 
papers. When  confronted  with  his  letter  Lord  Sackville  ac- 
knowledged the  letter  but  stated  that  it  was  private.  He, 
however,  submitted  to  newspaper  interviews,  which  aggravated 
rather  than  improved  his  statements.  After  an  interchange  of 
despatches  with  the  British  Foreign  Office  to  expedite  matters, 
Secretary  Bayard  thought  that  it  would  be  incompatible  with 
the  best  interests  of  both  governments  that  he  should  con- 
tinue any  longer  to  hold  his  official  position  in  the  United 
States  and  sent  him  his  passports. 

Lord  Sackville  was  undoubtedly  guilty  of  an  indiscretion, 
but  his  offence  does  not  seem  to  have  been  of  such  a  character 
as  to  justify  the  unseemly  haste  of  the  recall. 

98.  The  Rights  and  Privileges  of  Diplomatic  Officials.— 

Diplomatic  agents,  like  heads  of  states,  are  inviolable  in  their 
persons  while  holding  their  offices  in  the  receiving  state.  This 
inviolability  consists  not  only  in  special  rules  as  to  the  safety 
of  their  persons  but  also  as  to  their  exemption  from  all  kinds 
of  criminal  jurisdiction  of  the  state  to  which  they  are  accredited. 

The  protection  of  diplomatic  agents  is  not  restricted  alone 
to  themselves  but  is  extended  to  the  members  of  their  private 
and  official  families,  to  their  official  residence  and  its  contents 
and  archives,  as  well  as  to  the  means  of  communication  with 
their  home  state. 

In  the  instructions  to  the  diplomatic  officers  of  the  United 
States  it  is  stated  that  the  immunity  from  criminal  and  civil 


THE  HEAD  OF  THE  STATE  207 

process  is  one  pertaining  to  the  office  of  the  envoy  and  cannot 
be  waived  except  by  the  consent  of  his  government.  Even  if 
he  is  called  upon  to  give  testimony  under  conditions  which  do 
not  concern  the  affairs  of  his  mission  and  which  are  in  the 
interests  of  justice,  he  is  not  allowed  to  do  so  without  the  con- 
sent of  the  President. 

From  the  representative  character  of  his  office  an  affront  to 
an  ambassador  or  envoy  is  not  only  an  affront  to  his  ruler  and 
country  but  is  a  violation  of  the  common  welfare  and  general 
concern  of  all  nations.  It  was  this  latter  phase  that  placed 
so  serious  an  aspect  upon  the  incidents  and  surrounding  cir- 
cumstances of  the  Boxer  trouble  in  China. 

"It  is  not  meant,  however,"  as  Oppenheim  says,  "that  a 
diplomatic  envoy  must  have  a  right  to  do  what  he  likes.  The 
presupposition  of  the  privileges  he  enjoys  is  that  he  acts  and 
behaves  in  such  a  manner  as  harmonizes  with  the  internal  order 
of  the  receiving  state.  He  is,  therefore,  expected  voluntarily 
to  comply  with  all  such  commands  and  injunctions  of  the 
municipal  law  as  do  not  restrict  him  in  the  effective  exercise 
of  his  functions.  In  case  he  acts  and  behaves  otherwise  and 
disturbs  thereby  the  internal  order  of  the  state,  the  latter  will 
certainly  request  his  recall  or  send  him  back  at  once."^ 

The  criminal  law  of  England  makes  it  a  misdemeanor,  in 
case  a  person  violates,  by  force  any  privilege,  which  is  conferred 
upon  the  diplomatic  representatives  of  foreign  countries  or  who 
causes  the  arrest  or  imprisonment  of  any  foreign  diplomatic 
representative  or  the  person  of  a  servant  of  any  such  repre- 
sentative. 

The  statutes  of  the  United  States  (sees.  4063  and  4064) 
state  that  any  writ  or  process  of  any  court  of  the  United  States 
or  of  any  State  against  a  diplomatic  minister  or  a  servant  of 
such  minister  shall  be  void,  and  severe  penalties  are  prescribed 
against  any  person  who  shall  obtain  or  execute  such  a  writ  or 
process. 

•  Oppenheim,  2d  ed.,  vol.  I,  pp.  458-9. 


208     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

Summing  up  the  whole  subject,  we  can  say  with  Phillimore 
that: 

"First.  The  right  of  inviolabiUty  extends  to  all  classes  of 
public  ministers  who  duly  represent  their  sovereign  or  their 

oLotLC*     •     •     • 

"Secondly.  The  right  attaches  to  all  those  who  really  and 
properly  belong  to  the  household  of  the  ambassador;  those 
who — to  use  the  ordinary  description — accompany  him  as  mem- 
bers of  his  family  or  his  suite.  .  .  . 

"  Thirdly.  The  right  applies  to  whatever  is  necessary  for 
the  discharge  of  ambassadorial  functions.  ...  It  seems  to 
follow,  therefore,  that  he  is  entitled,  among  other  immunities, 
to  an  exemption  from  all  criminal  proceedings  and  to  freedom 
from  arrest  in  all  civil  suits.  .  .  . 

"Fourthly.  The  right  attaches  from  the  moment  that  he 
has  set  his  foot  in  the  country  to  which  he  is  sent,  if  previous 
notice  of  his  mission  has  been  imparted  to  it,  or,  in  any  case, 
as  soon  as  he  has  made  his  public  character  known  by  the  pro- 
duction either  of  his  passport  or  his  credentials. 

"Fifthly.  The  right  extends,  at  least  so  far  as  the  state  to 
which  he  is  accredited  is  concerned,  over  the  time  occupied  by 
the  ambassador  in  his  arrival,  his  sojourn,  and  his  departure. 

"Lastly.  The  right  is  not  affected  by  the  breaking  out  of 
war  between  his  own  country  and  that  to  which  he  is  sent."^ 

The  real  estate  of  a  diplomatic  envoy,  other  than  his  actual 
immediate  dwelling,  is  not  exempt  from  court  jurisdiction. 
The  only  question  in  this  case  is  as  to  the  mode  of  notifying 
the  envoy  of  a  civil  action  in  which  his  property  is  concerned. 
This  should  be  done  by  courteous  letter.  To  prevent  any 
further  complications  on  account  of  private  trade  or  commerce, 
every  state  should  forbid  their  diplomatic  agents  to  engage  in 
private  trade  or  commerce,  including  dealings  with  corpora- 
tions, or  as  members  or  directors  of  mercantile  corporations. 

A  secretary  of  a  mission  is,  in  accordance  with  admitted 
1  Phillimore,  3d  ed.,  vol.  II,  pp.  200,  201. 


THE  HEAD  OF  THE  STATE  209 

usages  of  international  law,  given  the  same  privileges  and  same 
exemptions  generally  as  the  diplomatic  representative  of  whose 
official  household  he  forms  a  part. 

During  Mr.  Gallatin's  mission  in  London,  in  1827,  an  inci- 
dent occurred,  involving  a  question  of  diplomatic  privileges, 
which  led  to  an  exposition  of  the  British  views  on  the  rights 
of  embassy.  His  coachman  was  arrested  in  his  stable,  on  a 
charge  of  assault,  by  a  warrant  from  a  magistrate.  The  sub- 
ject having  been  informally  brought  to  the  notice  of  the  foreign 
office,  a  communication  was  addressed  to  the  secretary  of  the 
American  legation  by  the  under-secretary  of  state,  Mr.  Back- 
house, May  18,  1827,  in  which  he  informed  Mr.  Lawrence  of 
the  result  of  a  reference  made  by  order  of  Lord  Dudley  to  the 
law  officers  of  the  crown.  In  it  it  is  said  that  "  the  statute  of 
the  7th  Anne,  chap.  16,  has  been  considered  in  all  but  the 
penal  parts  of  it  nothing  more  than  a  declaration  of  the  law  of 
nations;  and  it  is  held  that  neither  that  law  nor  any  construc- 
tion that  can  properly  be  put  upon  the  statute  extends  to  pro- 
tect the  mere  servants  of  ambassadors  from  arrest  upon  crim- 
inal charges,  although  the  ambassador  himself  and  probably 
those  who  may  be  named  in  his  mission  are,  by  the  best  opin- 
ions though  not  by  the  uniform  practice  of  this  country, 
exempt  from  every  sort  of  prosecution,  criminal  and  civil. 
His  lordship  will  take  care  that  the  magistrates  are  apprised, 
through  the  proper  channel,  of  the  disapprobation  of  his  Maj- 
esty's government  of  the  mode  in  which  the  warrant  was 
executed  in  the  present  instance  and  are  further  informed  of 
the  expectation  of  his  Majesty's  government  that,  whenever  the 
servant  of  a  foreign  minister  is  charged  with  a  misdemeanor, 
the  magistrate  shall  take  proper  measures  for  apprising  the 
minister,  either  by  personal  communication  with  him  or  through 
the  foreign  office,  of  the  fact  of  a  warrant  being  issued,  before 
any  attempt  is  made  to  execute  it,  in  order  that  the  minister's 
convenience  may  be  consulted  as  to  the  time  and  manner  in 
which  such  warrant  shall  be  put  in  execution." 


210  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

"An  official  character  was  given  to  the  preceding  communi- 
cation by  a  note  from  Earl  Dudley,  secretary  of  state  for  for- 
eign affairs,  June  2,  1827,  in  which  he  says  that  it  is  only  neces- 
sary for  him  to  'confirm  the  statement  contained  in  the  private 
note  of  Mr.  Backhouse,  referred  to  by  Mr.  Gallatin,  as  to  the 
law  and  practice  of  this  country  upon  the  questions  of  privilege 
arising  out  of  the  arrest  of  Mr.  Gallatin's  coachman,  and  to 
supply  an  omission  in  that  statement  with  respect  to  the  ques- 
tion of  the  supposed  inviolability  of  the  premises  occupied  by  a 
foreign  minister.  He  is  not  aware  of  any  instance,  since  the 
abolition  of  sanctuary  in  England,  where  it  has  been  held  that 
the  premises  occupied  by  an  ambassador  are  entitled  to  such 
a  privilege  by  the  law  of  nations.' 

"  He  adds  that  courtesy  requires  that  their  houses  should 
not  be  entered  without  permission  being  first  solicited  in  cases 
where  no  urgent  necessity  presses  for  the  immediate  capture 
of  an  offender."^ 

Among  the  privileges  which  the  usage  of  nations  has  im- 
parted to  the  diplomatic  agent  is  the  exemption  of  his  person 
from  taxation.  He  is,  moreover,  generally  exempt  from  the 
payment  of  customs  dues  upon  articles  imported  for  the  use  of 
himself  and  his  family.  These  privileges  are  ones  of  usage  and 
comity  rather  than  those  of  inherent  right. 

Although  it  is  not  within  the  power  of  a  diplomatic  envoy 
to  waive  the  rights  and  privileges  of  the  members  of  a  legation, 
the  home  state  itself  can  waive  these  privileges.  In  1909  the 
chancellor  of  the  German  legation  in  Santiago  de  Chile  mur- 
dered the  porter  of  the  legation,  a  Chilian  subject,  and  then  set 
fire  to  the  chancery  in  order  to  conceal  his  embezzlement  of 
money  of  the  legation.  The  German  Government  consented 
to  his  trial  by  the  Chilian  Government.  He  was  found  guilty 
and  executed  at  Santiago  on  July  5,  1910.^ 

99.  Right  of  Asylum  in  Legations  and  Embassies. — The 
privilege  of  immunity  from  local  jurisdiction  does  not  embrace 

1  Moore's  "Digest,"  vol.  IV,  pp.  656,  657. 
^  Oppenheim,  2d  ed.,  vol.  I,  p.  474. 


THE  HEAD  OF  THE  STATE  211 

the  right  of  asylum  for  persons  outside  of  a  representative's 
diplomatic  or  personal  household. 

In  regard  to  the  right  of  asylum  Bynkershoek  states  very 
strongly  "that,  whethe'-  common  sense,  the  reason  of  the 
thing,  or  the  end  and  object  of  embassies  be  considered,  there 
is  not  even  that  faint  color  of  reason  which  the  most  absurd 
pretensions  can  generally  put  forth  to  be  alleged  in  favor  of 
such  a  custom." 

Spain  seems  to  be  the  only  nation  in  Europe  in  which  the 
right  of  asylum  for  political  refugees  is  sanctioned  or  tolerated 
in  later  years.  In  the  revolutionary  period  of  1865-75,  which 
in  respect  to  disorder  and  violence  reproduced  the  decade  of 
1840-50,  the  practice  was  resumed.  In  1873,  after  the  abdi- 
cation of  Amadeus,  Marshal  Serrano,  who  had  taken  an  active 
part  in  placing  that  prince  on  the  throne,  was  hunted  by  a 
mob.  He  fled  from  house  to  house,  but  at  last  repaired  to  the 
abode  of  the  British  minister,  Mr.  Layard,  who  subsequently 
disguised  him  and  accompanied  him  by  rail  to  Santander, 
where  he  embarked  for  St.  Jean  de  Luz. 

Secretary  Fish  in  a  letter  to  Mr.  Caleb  Gushing,  our  minister 
to  Spain  in  1875,  says:  "The  frequency  of  resort  in  Spain  to 
the  legations  for  refuge  and  the  fact  mentioned  by  you  that 
nobody  there  disputes  the  claim  of  asylum  but  that  it  has 
become,  as  it  were,  the  common  law  of  the  land  may  be  ac- 
counted for  by  the  prevalence  of  'conspiracy  as  a  means  of 
changing  a  cabinet  or  a  government,'  and  the  continued  toler- 
ance of  the  usage  is  an  encouragement  of  this  tendency  to 
conspiracy. 

"It  is  an  annoyance  and  embarrassment  probably  to  the 
ministers  whose  legations  are  thus  used  but  certainly  to  the 
governments  of  those  ministers,  and,  as  facilitating  and  encour- 
aging chronic  conspiracy  and  rebellion,  it  is  wrong  to  the  gov- 
ernment and  to  the  people  where  it  is  practised — a  wrong  to 
the  people,  even  though  the  ministry  of  the  time  may  not 
remonstrate,  looking  to  the  possibility  of  finding  a  convenient 


212     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

shelter  when  their  own  day  of  reckoning  and  of  flight  may 
come."^ 

To  a  limited  extent  the  practice  of  asylum  still  exists  in 
certain  Spanish-American  countries.  In  these  countries,  where 
frequent  insurrections  occur  and  consequent  instability  of  gov- 
ernment exists,  the  practice  of  seeking  asylum  has  become 
so  firmly  established  that  it  is  often  invoked  by  unsuccessful 
insurgents  and  is  practically  recognized  by  the  local  govern- 
ment. "  The  government  of  the  United  States  does  not  sanc- 
tion the  usage  and  enjoins  upon  its  representatives  in  such 
countries  the  avoidance  of  all  pretexts  for  its  exercise.  While 
indisposed  to  direct  its  representatives  to  deny  temporary 
shelter  to  any  person  whose  life  may  be  threatened  by  mob 
violence,  it  deems  it  proper  to  instruct  them  that  it  will  not 
countenance  them  in  any  attempt  knowingly  to  harbor  offend- 
ers against  the  laws  from  the  pursuit  of  the  legitimate  agents 
of  justice." 

100.  Termination  of  Diplomatic  Mission. — A  diplomatic 
mission  may  come  to  a  close  in  various  ways.  In  a  general 
way  it  is  most  likely  to  end  by  a  recall  from  the  sending  state. 
If  this  recall  is  not  brought  about  by  unfriendly  actions  or 
words  of  the  receiving  state  a  letter  of  recall  is  sent  from  the 
head  of  his  home  state  to  the  envoy,  which  he  presents  formally 
to  the  head  of  the  state  to  which  he  has  been  accredited.  In 
return  he  receives  a  letter  of  acknowledgment  and  his  pass- 
ports. 

There  are  instances  of  recall  for  cause  of  an  envoy  by  his 
own  state  because  his  conduct  has  made  him  'persona  non  grata 
to  the  receiving  government. 

"The  first  and  most  notable  instance  of  this  kind  in  our 
own  history  was  the  recall  of  Mr.  Gouverneur  Morris  from 
Paris  at  the  instance  of  the  French  Government.  He  entered 
upon  his  duties  in  January,  1792,  and  was  a  witness  of  the 
exciting  period  which  marked  the  overthrow  of  the  monarchy, 
» Moore's  "Digest,"  vol.  II,  p.  771. 


THE  HEAD  OF  THE  STATE  213 

the  execution  of  the  king,  the  rapid  succession  of  Republican 
governments,  and  the  bloody  reign  of  terror.  No  minister 
could  have  so  conducted  himself  as  to  be  persona  grata  to  all 
these  rapidly  succeeding  governments,  but  Mr.  Morris  was 
especially  unfortunate  and  far  from  circumspect  in  his  con- 
duct. He  had  warm  sympathy  for  Louis  XVI  and  allowed 
his  feelings  to  lead  him  into  a  plot  for  the  king's  escape;  he 
counselled  with  the  Monarchists  and  did  not  conceal  his  dis- 
gust at  the  bloody  excesses  of  the  Republicans,  by  whom  he 
was  regarded  as  hostile.  Finally,  in  1794,  when  Washington 
was  forced  to  ask  for  the  recall  of  the  intemperate  French 
minister.  Genet,  the  French  Directory  requested  the  recall  of 
Morris,  and  he  was  forced  to  leave  France."  ^ 

"  The  practice  of  some  retired  American  ministers  of  making 
a  public  vindication  of  their  conduct  in  cases  where  they 
have  differed  from  their  government  is  to  be  reprehended. 
So  much  abuse  has  grown  out  of  the  practice  that  the  de- 
partment in  its  'Printed  Instructions'  has  forbidden  retiring 
diplomatic  officers  from  retaining  any  draughts  or  copies  of 
official  correspondence.  A  minister  should  trust  to  time  and 
the  official  publication  of  the  correspondence  for  his  vindica- 
tion. It  has  been  well  said  that  a  diplomatist  who  necessarily 
assumes  confidential  relations  to  his  government  is  not  at 
liberty  to  dissolve  that  confidential  connection  for  his  own  vin- 
dication. The  interests  of  the  country  have  suffered  more  from 
the  exposure  than  the  character  of  the  minister  could  possibly 
have  done  from  his  silence." ^ 

loi.    Agents  of  the  State  Without  Diplomatic  or  Consular 

Character. — Besides  diplomatic  and  consular  officers,  it  may 
and  does  happen  that  states  send  to  other  countries  agents  of 
various  character.  They  may  be  political  agents,  public  or 
secret,  or  commissioners  to  obtain  information  or  to  enter  into 
negotiations  independently  of  the  duly  accredited  diplomatic 

'  Foster's  "Practice  of  Diplomacy,"  p.  179. 

*  Foster's  "Practice  of  Diplomacy,"  pp.  189,  190. 


214     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

agent  of  the  state.  They  may  be  sent  to  peoples  in  a  state  of 
insurgency  or  revolution  or  to  the  authorities  of  a  de  facto 
government  in  a  state  which  has  not  been  recognized  as  such. 

A  public  political  agent  of  this  class  may  be  sent  to  another 
duly  recognized  state  or  government  for  purposes  of  special 
negotiations.  As  they  are  not  invested  with  a  diplomatic 
character,  they  are  given  a  commission  for  the  special  purpose 
or  a  letter  of  recommendation  but  no  letters  of  credence.  For 
this  reason  they  are  often  designated  as  commissioners.  They 
are  not  often  given  or  requested  to  be  given  the  full  diplomatic 
privileges  of  diplomatic  agents,  but  they  are  entitled,  neverthe- 
less, as  public  agents,  to  the  protectic  n  of  the  state,  and  as  a 
matter  of  comity  or  courtesy  it  would  not  be  improper  for  the 
receiving  state  to  grant  them  full  privileges.  A  sufficient  in- 
violability of  person  and  residence  and  of  papers  should  be 
granted  them  so  as  to  enable  them  to  execute  their  office. 
Secret  political  agents,  of  course,  will  not  be  in  this  category. 
In  the  history  of  the  United  States  such  agents  have  been 
used  upon  a  number  of  occasions. 

Probably  the  first  case  on  record  was  the  appointment  by 
President  Washington  of  Mr.  Gouverneur  Morris  as  a  "private 
agent"  to  London,  in  1789,  before  either  country  was  rep- 
resented in  the  other  by  a  minister.  As  he  was  directed  to 
converse  with  the  ministers  of  the  British  Government  as  to 
certain  matters  concerning  the  relations  between  the  two 
countries,  his  status  approached  that  of  a  political  or  diplomatic 
agent. 

In  1849  Mr.  A.  Dudley  Mann  was  appointed  by  President 
Taylor  as  a  special  and  confidential  agent  to  Hungary,  then  in 
a  state  of  insurrection  against  Austria,  in  order  to  determine 
the  question  of  recognition  of  its  independence.  The  United 
States  had  at  the  time  a  diplomatic  representative  at  Vienna. 

In  1852  Commodore  M.  C.  Perry,  U.  S.  N.,  was  appointed 
by  the  President  to  conclude  a  treaty  with  Japan. 

In  1861  Archbishop  Hughes  and  Bishop  Mcllvaine  were 


THE  HEAD  OF  THE  STATE  215 

sent  to  Europe  by  the  secretary  of  state  with  the  approval  of 
President  Lincoln  as  confidential  agents  in  relation  to  questions 
growing  out  of  the  Civil  War. 

In  1893  Mr.  James  H.  Blount  was  appointed  a  special  com- 
missioner to  the  Hawaiian  Islands  with  paramount  authority,  a 
letter  of  credence,  etc.,  there  being  a  minister  to  the  islands  at 
the  time. 

In  1900  Mr.  W.  W.  Rockhill  was  appointed  commissioner  to 
China  with  diplomatic  privileges  and  immunities,  owing  to  the 
state  of  affairs  and  isolation  of  the  legations  at  Peking  during 
the  Boxer  War. 

An  unusual  mission  in  our  history  occurred  in  1902,  as  follows: 

"The  United  States  Commission  in  the  Philippines  having 
recommended,  as  a  means  of  allaying  certain  native  discon- 
tents of  long  standing,  the  purchase  by  the  government  of  the 
lands  of  the  religious  orders  in  the  islands,  it  was  deemed  es- 
sential definitely  to  ascertain  the  attitude  of  the  Vatican  on 
the  subject.  To  that  end  it  was  decided  to  send  to  Rome 
Governor  Taft,  the  head  of  the  Philippine  Commission,  who 
was  then  in  Washington.  His  commission,  which  was  dated 
May  9,  1902,  was  a  letter  of  instructions,  addressed  to  'Hon. 
William  H.  Taft,  Civil  Governor  of  the  Philippines,'  and 
signed  by  'Elihu  Root,  Secretary  of  War.'  After  adverting 
to  the  apparent  impossibility  of  arranging  a  purchase  directly 
with  the  friars,  it  authorized  Governor  Taft  to  ascertain  what 
'church  authorities'  had  the  power  to  negotiate  for  and  de- 
termine upon  a  sale  of  the  lands;  and  if  he  should  find,  as  the 
information  at  hand  indicated,  that  'the  officers  of  the  church 
at  Rome'  possessed  such  power,  he  was  to  endeavor  to  reach 
at  least  a  basis  of  negotiation  along  lines  which  would  be  satis- 
factory to  them  and  to  the  Philippine  Government.  Certain 
rules  were  laid  down  for  his  guidance,  and  it  was  expressly  de- 
clared that  his  errand  would  'not  be  in  any  sense  or  degree 
diplomatic  in  its  nature,'  but  would  be  'purely  a  business  matter 
of  negotiation'  by  him  'as  governor  of  the  Philippines  for  the 


216     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

purchase  of  property  from  the  owners  thereof  and  the  settle* 
raent  of  land  titles  in  such  manner  as  to  contribute  to  the  best 
interests  of  the  people  of  the  islands.'  In  conclusion  he  was 
assured  of  any  assistance  which  he  might  desire  to  enable  him 
to  perform  his  duties  in  a  manner  satisfactory  to  himself;  and 
he  called  to  his  aid  Judge  James  S.  Smith,  then  a  member  of 
the  Supreme  Court  of  the  Philippines,  and  Major  Porter  of 
the  judge  advocate's  bureau  in  the  United  States  army. 

"Governor  Taft  bore  with  him  a  friendly  letter  from  Presi- 
dent Roosevelt  to  the  Pope,  asking  him  to  accept  a  set  of  the 
President's  works,  and  an  American  bishop  of  the  Catholic 
Church  arranged  for  an  audience.  Governor  Taft  was  duly 
received  by  his  Holiness,  and  he  then  entered  into  communica- 
tion with  Cardinal  Rampolla,  papal  secretary  of  state.  Major 
Porter  acting  as  his  bearer  of  despatches.  Each  step  in  the 
correspondence  was  duly  reported  to  the  secretary  of  war, 
who  gave  fresh  instructions  as  they  were  needed.  The  nego- 
tiations at  Rome  were  concluded  late  in  July,  1902,  with  the 
understanding  that  the  Holy  See  would  send,  as  afterward 
was  done,  an  apostolic  delegate  to  Manila  to  treat  with  the 
local  government."^ 

The  case  of  the  appointment  of  the  Hon.  John  Lind  as  a 
commissioner  or  agent  to  observe  upon  and  report  as  to  the 
affairs  of  Mexico  is  an  instance  of  a  mission  of  this  kind  in 
recent  times. 

The  question  of  such  appointments  and  their  validity  with- 
out confirmation  by  the  Senate  has  been  discussed  in  the 
Senate  several  times,  but  on  the  whole  the  precedents  are  that 
the  President  has  the  right  to  make  such  appointments  espe- 
cially for  the  negotiation  of  treaties. 

Members  of  arbitration  and  other  conferences  are  also  ap- 
pointed and  employed  by  the  President  without  reference  to 
the  Senate. 

»  Moore's  "Digest,"  vol.  IV,  pp.  447,  etc. 


THE  HEAD  OF  THE  STATE  217 


TOPICS  AND  REFERENCES 

1.  Position  and  Immunities  of  the  Head  of  a  State  in  a  General  and 

Diplomatic  Sense — 

Phillimore,  3d  ed.,  vol.  II,  133-153.  Hall,  6th  ed.,  169,  170,  291. 
Oppenlieim,  2d  ed.,  vol.  I,  425-435. 

2.  Diplomatic  Intercourse  Between  States — 

Bernard,  "Lectures  on  Diplomacy,"  1S6S.  Foster,  "Practice  of 
Diplomacy,"  1906.  Wheaton,  8th  ed.,  Dana,  note,  120. 
Moore's  "Digest,"  vol.  IV,  chap.  XV,  sec.  620,  etc.  Schuyler's 
"American  Diplomacy." 

3.  The  Appointment  and  Reception  of  Embassies  and  Diplomatic  Agents — 

Halleck.  4th  ed.,  vol.  I,  290-2;  385-390.  Oppenheim,  2d  ed.,  vol. 
I,  446-456.     Hannis  Taylor,  324-334. 

4.  Rank  and  Classification  of  Diplomatic  Officials — 

Moore's  "Digest,"  vol.  IV,  430-1.  Oppenheim,  vol.  I,  2d  ed.,  443- 
6.    Twiss,  vol.  I,  sees.  204-9. 

5.  The  Duties  of  Diplomatic  Envoys — 

Foster's  "Practice  of  Diplomacy,"  chaps.  V  and  VI.  Hershey's 
"Essentials,"  277.  Moore's  "Digest,"  vol.  IV,  653,  565,  570, 
572-4,  583,  615,  618-622,  680-726. 

6.  Inviolability  of  Diplomatic  Agents — 

Foster's  "Practice  of  Diplomacy,"  chap.  VIII.  Phillimore,  3d  ed., 
vol.  II,  186-193,  199-218.     Oppenlieim,  2d  ed.,  vol.  I,  457-472. 

7.  Right  of  Asylum — 

Hall,  6th  ed.,  pp.  178-182.  Sibley  and  Elias,  "The  Alien  Act  and 
Right  of  Asylum,"  1906.  Moore's  "Digest,"  vol.  II,  sees.  291- 
307. 

8.  Agents  of  the  State  Without  Diplomatic  or  Consular  Character — 

Oppenheim,  2d  ed.,  vol.  I,  508-512.  Moore's  "Digest,"  vol.  IV, 
447-458.    Foster's  "Practice  of  Diplomacy,"  197-204. 


CHAPTER  XI 

CONSULS.    EXEQUATUR.    RIGHTS,  IMMUNITIES,  AND 
DUTIES  OF  CONSULAR  OFFICERS 

102.  Historical  Sketch  of  Consulates. — The  establishment 
of  consuls  within  the  territory  of  foreign  countries  antedates 
by  several  centuries  the  maintenance  of  permanent  legations 
and  embassies.  "  The  origin  of  this  institution  is  in  all  prob- 
ability traceable,"  says  PhiUimore,  "to  that  domestic  consu- 
late which,  after  the  fall  of  the  Western  Empire,  was  during 
the  earlier  part  of  the  Middle  Ages  founded  in  most  of  the 
maritime  cities  of  the  south  of  Europe  connected  with  com- 
merce and  navigation,  the  jurisprudence  and  authority  of  which 
rested  mainly  upon  principles  gleaned  from  the  Roman  and 
Greek  law."^ 

About  the  eleventh  century  commercial  settlements  or 
depots,  and  a  consequent  jurisdiction,  grew  up  under  consuls 
appointed  to  deal  with  maritime  and  commercial  questions  in 
the  Levant,  especially  and  generally  on  the  Mediterranean 
Sea.  This  growth  or  commercial  expansion  gradually  extended 
beyond  the  limits  of  the  Mediterranean  to  the  rest  of  maritime 
Europe.  The  jurisdiction  of  consuls  in  foreign  countries  also 
came  to  include  a  local  government  of  their  fellow  countrymen 
in  matters  other  than  conmiercial,  in  accordance  with  their 
home  laws.  Consuls  at  this  time  enjoyed  all  of  the  immuni- 
ties which  ambassadors  hold  at  the  present  time. 

The  modern  system  of  consuls  can  be  said  to  date  from  the 
latter  part  of  the  sixteenth  century,  and  in  this  establishment 
the  French  led  the  way.     The  special  advantages  which  France 

1  PhiUimore,  3d  ed.,  vol.  II,  pp.  265,  266. 
218 


RIGHTS  AND  DUTIES  OF  CONSULAR  OFFICERS     219 

had,  due  to  her  alliance  with  Turkey,  gave  rise  to  what  are 
known  as  the  "capitulations,"  or  the  right  of  exterritoriality. 
Under  these  capitulations  the  French  consuls  were  endowed 
with  diplomatic  immunities,  while  the  traders  of  all  other 
nations  were  placed  under  the  protection  of  the  French  flag. 
In  1675  English  consuls  were  established  in  Turkey  under  the 
"capitulations"  negotiated  by  France,  which  exist  under  tht.t 
name  in  Turkey  and  Turkish  territory  to  the  present  time. 

The  earlier  consulates  had  a  character  very  much  like  those 
now  existing  in  many  Oriental  countries,  with  a  local  jurisdic- 
tion over  the  nationals  of  the  consular  office.  With  the  growth 
of  the  idea  of  national  independence  and  sovereignty,  exterri- 
torial jurisdiction  in  Christian  countries,  both  civil  and  crim- 
inal, became  at  variance  with  the  principle  of  national  sover- 
eignty, and  at  the  same  time  the  advancement  of  civilization  and 
of  law  and  order  rendered  it  unnecessary,  and  the  modern  sys- 
tem of  consular  officers  without  local  territorial  jurisdiction  in 
foreign  countries  came  into  being. 

In  its  changed  character  the  consular  office  became  of  a 
limited  nature,  consisting  of  a  watchfulness  on  the  part  of  the 
consul  over  the  commercial  and  maritime  interests  of  his  state 
and  a  limited  authority  over  his  fellow  countrymen  within  his 
assigned  territory.  Although  limited  in  authority,  the  sub- 
jects dealt  with  by  the  consul  are  growing  in  number  and  ex- 
tent in  consequence  of  the  rapid  growth  of  international  rela- 
tions and  commerce.  While  their  judicial  authority  has  been 
restricted,  their  commercial  duties  have  been  made  more  com- 
prehensive and  detailed. 

The  United  States  in  its  early  history  accepted  the  con- 
sular system  as  it  existed  in  the  civilized  nations  of  the  world. 
Among  its  first  treaties  was  a  consular  convention  with  France, 
and  it  has  always  taken  a  prominent  part  in  securing  for  con- 
suls a  defined  status  and  recognized  function  under  interna- 
tional law.  Washington,  as  President,  appointed  fifteen  con- 
sular officials  before  the  enactment  of  the  law  of  1792  upon  the 


220     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

subject.  Congress  has  been  less  progressive  than  the  execu- 
tive department,  the  law  of  1856  being  the  first  attempt  on 
the  part  of  the  legislative  department  to  provide  an  act  for 
its  proper  establishment.^  Finally,  by  the  passage  of  the  act 
of  April  30,  1905,  the  consular  service  was  reorganized  and 
placed  upon  a  better  basis.  This  act  has  been  supplemented 
by  the  consular  regulations  of  the  State  Department,  which  has 
tended  toward  greater  efficiency  and  permanence  of  tenure. 
The  more  important  of  these  regulations  should  be  enacted 
into  statute  law  and  the  consular  service  given  by  law  a  more 
permanent  and  stable  nature. 

103.  Definition  of  a  Consul  and  His  General  Functions. — 
A  consul,  in  which  term  are  included  all  grades  of  consular 
ofiicials,  is  a  public  functionary  and  representative  agent 
named  by  one  state  to  act  with  the  consent  of  the  receiving 
state  within  its  jurisdiction  and  domain.  He  has  for  his  mis- 
sion the  supervision  and  protection,  within  certain  lines,  of  the 
commercial  and  national  interests  of  his  country  and  country- 
men, in  accordance  with  the  treaties  existing  between  the  two 
states,  the  principles  of  international  law,  the  regulations  of 
his  own  government,  and  the  usages  of  his  consular  jurisdiction.'^ 

The  consul  has  many  functions  which  can  hardly  be  enumer- 
ated by  law  or  regulation.  These  functions,  with  the  rapid 
growth  of  intercourse  between  nations  and  the  general  ten- 
dency for  increased  international  administration,  are  adding 
constantly  to  the  number  and  complexity  of  consular  duties. 

The  importance  of  the  position  of  consul  has  found  expres- 
sion in  a  final  paragraph  of  the  regulations  drawn  up  by  the 
Institute  of  International  Law  upon  the  subject  of  consular 
immunities,  at  a  session  held  on  September  26,  1896,  which 
should  be  gravely  considered  by  all  those  concerned  with  the 
subject.     It  reads  as  follows: 

"The   institute  having  adopted  the    regulations  regarding 

»  Foster's  "Practice  of  Diplomacy,"  pp.  216,  217. 
»StoweU,  "Le  Consul,"  p.  223. 


RIGHTS  AND  DUTIES  OF  CONSULAR  OFFICERS     221 

immunities  of  consuls,  expresses  the  wish  that  governments 
whose  functionaries  are  Ukely  to  be  in  a  position  to  be  bene- 
fited by  them  will  exercise  the  greatest  care  in  the  choice  of 
such  functionaries,  that  they  may  be  worthy  in  all  respects 
of  the  immunities  specified."^ 

Notwithstanding  that,  by  act  of  Congress,  a  consul  cannot 
exercise  diplomatic  functions  without  special  authority  from 
the  President  of  the  United  States,  the  circumstances  surround- 
ing a  consul-general  in  large  and  distant  colonial  countries  like 
British  India,  the  Dominion  of  Canada,  the  Commonwealth  of 
Australia,  and  the  South  African  Union  are  such  that  his  posi- 
tion with  regard  to  the  local  authorities  becomes  of  a  quasi- 
diplomatic  and  political  nature.  This  is  also  not  only  true 
with  respect  to  British  colonies  just  cited  but  is  also  applicable 
to  French  and  other  colonies,  like  Algeria,  Madagascar,  and 
the  German  colonies  in  Africa  and  the  southern  Pacific.  For- 
merly, when  Cuba  was  a  colony  of  Spain,  the  consul-general 
corresponded  directly  with  the  United  States  Department  of 
State.  Besides  this  there  are  more  or  less  intangible  political 
and  diplomatic  duties  which  pertain  to  the  official  agent  of  the 
United  States  on  the  spot. 

In  fact,  it  is  stated  in  the  consular  regulations  of  the  United 
States  that,  in  the  absence  of  a  diplomatic  representative,  there 
may  be  circumstances  which,  apart  from  usage,  make  it  proper 
for  him  to  address  the  local  government  upon  subjects  which 
relate  to  the  duties  and  rights  of  his  office  and  which  are  usually 
dealt  with  through  a  legation  or  embassy.  Under  such  cir- 
cumstances he  has  an  undoubted  right  of  access  to  the  authori- 
ties of  the  state  in  all  matters  appertaining  to  his  office. 

Consuls  can  and  have  been  made  charges  d'affaires  by  execu- 
tive authority  as  just  stated  and  hence  invested  with  direct 
diplomatic  functions,  but  these  duties  are  exercised  at  the  cap- 
ital of  the  state,  and  such  functions  do  not  change  the  legal 
status  of  the  consuls. 

i"Annuaire,"  etc.,  1896. 


222     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

In  the  absence  of  both  a  diplomatic  and  consular  oflBcer  of 
the  United  States  in  foreign  waters  or  on  the  high  seas,  the 
commander-in-chief  or  the  senior  naval  officer  present  "has 
authority  by  law  to  exercise  the  powers  of  a  consul  so  far  as 
seamen  of  the  merchant  service  of  the  United  States  are  con- 
cerned."^ He  is  also  directed,  in  such  absence,  by  the  regula- 
tions of  the  navy  "to  communicate  or  remonstrate  with  for- 
eign civil  authorities  as  may  become  necessary  and  urge  upon 
the  American  citizens  in  the  locality  the  necessity  of  abstain- 
ing from  participation  in  political  controversies  or  from  the 
violation  of  the  laws  of  neutrality." 

The  naval  commander-in-chief  is  directed  by  the  naval 
regulations  to  preserve  the  most  cordial  relations,  so  far  as 
possible,  with  the  diplomatic  and  consular  representatives  of 
the  United  States  in  foreign  countries  and  extend  to  them  the 
honors,  salutes,  and  other  official  courtesies  to  which  they  are 
entitled.  He,  furthermore,  shall  carefully  and  duly  consider 
any  request  for  service  or  other  communication  from  any  such 
representative. 

Although  due  weight  should  be  given  to  the  opinions  and 
advice  of  such  representatives,  a  commanding  officer  is  solely 
and  entirely  responsible  to  his  own  immediate  superior  for  all 
official  acts  in  the  administration  of  the  command. 

As  a  general  rule,  when  in  foreign  ports  he  communicates 
with  local  civil  officials  and  foreign  diplomatic  and  consular 
authorities  through  the  diplomatic  and  consular  representative 
of  the  United  States  on  the  spot. 

Furthermore,  on  occasions  where  injury  to  the  United  States 
or  to  citizens  thereof  is  committed  or  threatened,  in  violation 
of  the  principles  of  international  law  or  treaty  rights,  the  com- 
mander-in-chief shall  consult  with  the  diplomatic  representative 
or  consul  of  the  United  States  and  take  such  steps  as  the 
gravity  of  the  case  demands,  reporting  immediately  to  the 
secretary  of  the  navy  all  the  facts.  The  responsibility  for 
'  Sec.  1433,  Revised  Statutes  of  the  United  States. 


RIGHTS  AND  DUTIES  OF  CONSULAR  OFFICERS     223 

any  action  taken  by  a  naval  force,  however,  rests  wholly  upon 
the  commanding  officer  thereof.^ 

It  may  be  said  that  no  state  can  be  supposed  to  tolerate  the 
interference  by  a  consul  in  the  political  affairs  of  the  country 
of  his  residence.  So  far  as  the  United  States  is  concerned,  it 
is  considered  a  sufficient  ground  for  his  recall. 

104.  Classification  and  Precedence  of  Consuls. — In  a  gen- 
eral way  consular  officers  can  be  divided  into  two  classes. 

The  first  class  consists  of  those  who  are  public  officials  of 
the  sending  country  and  hence  are  purely  professional.  These 
consular  officers  are  not  permitted  by  their  country  to  engage 
in  any  other  business  or  profession.  Though  not  required  by 
law  to  be  citizens  of  the  United  States,  they  are  almost  invari- 
ably citizens  and,  of  preference,  native  citizens. 

The  second  class  is  composed  of  those  who  are  engaged  In  a 
business  or  profession,  their  consular  functions  being  of  a  sec- 
ondary nature. 

The  latter  class  are  not  necessarily  of  the  nationality  of  the 
sending  state  and  are  of  inferior  status  and  do  not  from  their 
position  enjoy  full  consular  privileges  and  immunities. 

With  respect  to  rank  consuls  are  generally  of  four  grades — 
consuls-general,  consuls,  vice-consuls,  and  consular  agents. 

The  consular  service  of  the  United  States  consists  of  consuls- 
general,  consuls,  vice-consuls-general,  deputy-consuls-general, 
vice-consuls,  deputy-consuls  and  consular  agents,  consular 
assistants  and  interpreters. 

The  American  consular  representative  at  Cairo,  Egypt,  has 
by  law  the  title  of  diplomatic  agent  and  consul-general.  In 
other  cases,  when  diplomatic  functions  have  been  assigned  to 
the  office,  there  is  no  authority  for  the  consular  officer  to  assume 
the  title  of  diplomatic  agent. 

Consuls-general  at  large  are  inspectors  of  consulates;  those 
not  so  defined  are  designated  for  specific  jurisdiction  and  either 
exercise  supervision  or  control  over  several  consular  districts 
or  are  placed  over  one  large  consular  district. 

»  "U.  S.  Navy  Regulations  of  1913,"  Arts.  1G42,  1643,  1644,  1646. 


224     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

Consuls  serve  within  jurisdictions  of  smaller  size  or  impor- 
tance or  are  assigned  to  certain  places  or  seaports. 

In  precedence  a  consul-general  ranks  with,  but  after,  a  com- 
modore in  the  navy  or  a  brigadier-general  in  the  army,  and  with 
a  secretary  of  an  embassy;  but  when  thrown  together  in  matters 
other  than  of  a  diplomatic  nature  the  consul-general  takes 
precedence.  He  is  entitled  in  the  port  or  ports  within  his 
jurisdiction  to  a  salute  of  eleven  guns.  A  consul  under  the 
same  circumstances  is  entitled  to  a  salute  of  seven  guns  and  a 
vice-consul  to  one  of  five  guns. 

A  vice-consular  officer  takes  the  place  and  exercises  all  the 
functions  or  powers  of  a  consul-general  or  consul  when  the 
latter  is  temporarily  absent  or  relieved  from  duty. 

A  deputy-consular  officer  is  a  subordinate  of  a  consul-general 
or  consul,  under  whose  supervision  he  exercises  consular  func- 
tions which  are  generally  of  a  routine  character.  He  never 
assumes  the  responsible  charge  of  the  office,  that  being  the 
duty  of  the  vice-consul. 

A  consular  agent  is  an  officer  subordinate  to  a  consul-general 
or  consul,  exercising  similar  powers  at  ports  or  places  different 
from  those  at  which  the  consulate-general  or  consulate  is  situ- 
ated. He  acts  under  the  direction  of  his  principal  and  is  paid 
from  the  fees  of  his  office. 

There  are  thirty  consular  assistants  who  are  appointed  by 
the  President  and  hold  office  during  good  behavior.  They 
may  be  assigned  from  time  to  time  to  such  consular  offices  and 
with  such  duties  as  the  secretary  of  state  may  direct. 

Marshals  are  provided  for  certain  of  the  consular  courts  in 
China  and  Turkey,  where  the  American  consuls  are  invested 
with  judicial  powers  over  American  citizens.  Their  duties  are 
to  execute  all  process  issued  by  the  ambassador  or  minister  of 
the  United  States  or  by  the  consuls  at  the  port  in  which  they 
reside  and  to  perform  the  duties  required  in  the  regulations 
of  the  consular  court. 

As  a  matter  of  explanation  of  the  general  policy  of  the 
United  States,  it  may  be  well  to  quote  a  letter  of  Secretary  Fish 


RIGHTS  AND  DUTIES  OF  CONSULAR  OFFICERS     225 

written  April  7,  1876,  which  says  that  "the  experience  of  the 
government  has  demonstrated  the  inconvenience  and  often 
serious  embarrassment  resulting  from  the  appointment  of 
naturalized  citizens  to  consulates  within  the  country  of  their 
nativity,  while  with  regard  to  appointments  in  other  countries 
they  stand  on  the  same  footing  as  all  other  citizens."^ 

105.  Exequatur — Installation  of  the  Consul. — After  the 
appointment  of  a  consul,  the  sending  government  remits  to 
the  government  of  the  country  within  whose  jurisdiction  his 
post  exists  his  commission.  This  is  done  through  its  diplo- 
matic representative  accredited  to  that  government,  accom- 
panied by  instructions  to  apply  for  an  exequatur.  An  ex- 
equatur is  called  in  Turkey  a  barat. 

By  an  exequatur  is  meant  a  recognition  of  the  consul  by  the 
foreign  receiving  state,  and  a  warrant  that  he  is  permitted  to 
proceed  to  perform  the  duties  of  his  office  as  consul  in  the 
jurisdiction  or  territory  for  which  he  is  appointed  in  accordance 
with  law  and  usage. 

The  conveyance  of  the  exequatur  may  be  by  a  formal  docu- 
ment or  letter  patent  signed  by  the  sovereign  and  countersigned 
by  the  minister  of  foreign  affairs,  or  it  may  be  simply  a  noti- 
fication that  he  is  recognized  and  an  exequatur  granted,  or  it 
may  be  as  in  Austria  that  his  commission  is  indorsed  with  the 
word  "exequatur"  and  stamped  with  the  imperial  seal. 

If  the  foreign  state  accords  the  exequatur  without  reserva- 
tion, the  rights,  privileges,  and  immunities  of  the  consul  will 
be,  as  mentioned  before,  determined  by  the  treaties  and  by 
the  general  principles  of  international  law  governing  consular 
relations.  If  there  are  restrictions  or  interpretations  that  the 
receiving  state  desires  to  place  upon  the  consular  office  to  which 
the  appointment  has  been  made,  such  conditions  will  be  named 
in  accompaniment  of  the  exequatur.  If  the  state  by  which 
the  consul  is  appointed  accepts  the  exequatur  with  its  restric- 
tions the  two  states  will  be  bound  by  the  agreement. 

1  Moore's  "Digest,"  vol.  V,  p.  11,  and  Schuyler's  "American  Diplomacy," 
p.  79. 


226     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

All  states  can  refuse,  by  withholding  an  exequatur,  to  receive 
consuls  on  personal  grounds  or  to  receive  them  only  in  certain 
parts  of  then-  territory,  so  that  a  state  has  the  right,  if  it  so  de- 
clare, to  limit  the  exercise  of  consular  functions  by  certain  con- 
ditions. These  conditions,  however,  must  apply  to  consuls  of 
all  nations  and  not  be  based  upon  personal  or  national  con- 
siderations. Such  conditions,  moreover,  must  not  be  in  viola- 
tion of  any  treaty  existing  between  these  two  countries. 

The  exequatur  once  granted,  it  becomes  a  duty  on  the  part 
of  the  granting  state  to  notify  the  local  authorities  and  to  give 
such  publicity  as  may  be  necessary  to  inform  the  general  public 
as  well  as  the  nationals  of  the  state  to  which  the  consul  belongs 
who  happen  to  be  residing  within  his  district.  It  is  established 
usage  that  the  district  named  by  the  sending  state  should,  as 
a  rule,  be  accepted  by  the  receiving  state,  as  it  is  more  par- 
ticularly a  matter  of  convenience  of  the  sending  state. 

In  case  of  unsettled  or  changed  political  conditions  in  the 
district  to  which  the  consul  is  to  be  sent,  the  sending  state  has 
the  right  of  naming  the  authorities  to  which  application  for 
an  exequatur  should  be  made,  as  it  may  easily  involve  a  grave 
political  question.  This  is  even  a  graver  matter  when  the 
receiving  government  grants  recognition  to  a  government  by 
giving  an  exequatur  to  a  consul  of  their  appointment. 

It  is  not  always  necessary  to  ask  for  and  obtain  a  formal 
exequatur  for  a  consular  agent.  Frequently,  on  application, 
the  foreign  minister  of  the  receiving  state  gives  such  exequatur 
in  the  form  of  a  certificate  of  recognition.^ 

In  the  case  of  delay,  due  to  absence  of  the  proper  central  au- 
thorities or  the  distance  of  the  capital  from  the  district  of  the 
newly  appointed  consul,  he  may  proceed  to  his  post  and  enter 
upon  the  discharge  of  his  duties  on  receiving  permission  from 
the  proper  local  authorities  of  the  place  to  act  in  his  official 
capacity  until  the  exequatur  arrives. 

If  a  consul  be  guilty  of  illegal  or  improper  conduct,  he  Is 
liable  to  have  his  exequatur  revoked,  and  if  his  conduct  be 
1  Stowell,  "Le  Consul,"  pp.  257,  etc. 


RIGHTS  AND  DUTIES  OF  CONSULAR  OFFICERS     227 

criminal  to  be  punished  according  to  the  laws  of  the  country, 
or  he  may  be  sent  out  of  the  country  at  the  option  of  the  of- 
fended government. 

There  have  been  a  number  of  cases  of  the  revocation  of  an 
exequatur  as  well  as  a  refusal  to  grant  it  by  various  govern- 
ments. 

Mr.  Eugene  Schuyler,  in  his  work  "  American  Diplomacy,'* 
says  "refusals  to  grant  the  exequatur  are  not  uncommon.  An 
English  consul  was  refused  by  Russia  in  the  Caucasus  because 
it  was  alleged  he  was  hostile  to  the  Russian  Government  and 
had  expressed  strong  opinions  about  Russian  movements  in 
Asia.  In  our  own  history,  without  going  further,  a  consul  re- 
cently appointed  to  Beirut  was  rejected  by  Turkey  because  he 
was  a  clergyman  and  might  be  too  much  connected  with  the  mis- 
sionaries; another  was  rejected  by  Austria  on  account  of  his  po- 
litical opinions,  he  having  previously  been  an  Austrian  subject." 

During  the  Civil  War,  in  1861,  Mr.  Bunch,  the  British  consul 
at  Charleston  who  was  exercising  consular  functions  under  an 
exequatur  from  the  United  States  Government,  had  this  exe- 
quatur revoked  on  account  of  various  communications  he  had 
entered  into  with  the  Confederate  Government  and  also  be- 
cause his  conduct  had  all  along  "been  that  not  of  a  friend  to 
this  government  or  even  of  a  neutral,  but  of  a  partisan  of  fac- 
tion and  disunion."  The  British  Government,  although  deny- 
ing the  charge  that  Mr.  Bunch  had  acted  as  a  partisan,  did  not 
dispute  the  President's  right  to  withdraw  Mr.  Bunch's  exe- 
quatur. Mr.  Bunch  continued  to  reside  in  Charleston  during 
the  time  it  remained  in  possession  of  the  Confederate  Govern- 
ment. 

Conviction  of  a  person  by  a  United  States  military  commis- 
sion at  Manila  of  publishing  seditious  newspaper  matter  in 
violation  of  the  articles  of  war  precluded  the  recognition  of 
such  person  as  the  consular  agent  of  a  foreign  power  at  that 
place. 

The  fundamental  rights  and  privileges  of  consular  officers 


228     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

depend,  as  has  been  said,  upon  the  principles  of  international 
law  and  the  customs  and  usages  of  nations.  Certain  rights  and 
privileges  are,  however,  formally  guaranteed  by  treaties  and 
consular  conventions.  The  principal  rights  and  privileges  from 
all  of  these  sources  are  given  in  the  following  paragraphs  in 
succession,  but  it  must  be  remembered  that  these  vary  with 
the  nations  concerned,  and  reference  must  be  made  to  various 
treaties  and  to  the  consular  regulations  for  the  nations  con- 
cerned.' 

The  following  rights  and  privileges  of  consular  oflScers  are 
more  or  less  general,  the  consular  regulations  of  the  various 
countries  entering  into  fuller  details.     They  are: 

1.  Those  rights  and  privileges  that  arise  under  the  favored- 
nation  clause  by  which  can  be  claimed  all  those  granted  con- 
suls of  other  countries. 

2.  The  inviolability  of  the  archives  and  public  papers  of  the 
consulate. 

3.  Exemption  from  criminal  arrest  except  for  grave  infrac- 
tions of  the  law. 

4.  Exemption  from  obligations  to  appear  as  a  witness  except 
through  deposition. 

5.  Exemption  from  taxation  except  in  certain  cases. 

6.  Exemption  from  military  billeting  and  service  and  from 
other  public  services. 

7.  The  right  to  communicate  with  his  nationals  in  tempo- 
rary or  permanent  residence. 

8.  The  right  to  communicate  and  correspond  with  his  gov- 
ernment and  its  agents. 

9.  The  right  to  correspond  with  the  local  authorities  upon 
official  matters. 

10.  The  right  to  display  the  arms  of  his  country  and  upon 
proper  occasions  to  display  the  flag  of  his  country  upon  or 
over  the  consular  office  or  dwelling. 

11.  The  right  to  take  depositions. 

*  Treaties  of  the  United  States.     U.  S.  Consular  Regulations,  1896. 


RIGHTS  AND  DUTIES  OF  CONSULAR  OFFICERS     229 

12.  The  right  to  reclaim  deserters  in  accordance  with  treaties. 

13.  The  right  to  act  in  matters  of  salvage  and  wrecks. 

14.  The  charge,  etc.,  of  the  personal  effects  of  deceased  cit- 
izens of  the  United  States. 

15.  The  right  of  requesting  the  extradition  of  fugitive  crim- 
inals in  absence  of  diplomatic  representatives. 

16.  The  right  to  exercise  judicial  and  notarial  powers  of  a 
miscellaneous  nature  and  to  watch  trial  proceedings  in  which 
his  nationals  are  concerned.  This  is  especially  the  case  with 
merchant  seamen. 

17.  Inviolability  of  the  consular  office  and  dwelling  in  cer- 
tain countries  by  treaty,  but  this  does  not  authorize  the  use 
of  the  building  as  an  asylum. 

18.  In  countries  where  the  right  of  exterritoriality  exists  con- 
suls have  the  right  to  exercise  judicial  power  in  civil  or  crim- 
inal cases.^ 

Requests  have  been  made  at  times  by  foreign  governments 
upon  the  government  of  the  United  States  to  permit  or  direct 
their  consular  officers  to  assume  functions  as  their  agents  and, 
as  such,  to  extend  protection  to  their  nationals  who  may  desire 
it  and  who  happen  to  be  domiciled  where  there  are  at  the  time 
no  consular  or  diplomatic  officials  of  the  country  concerned. 

Authority  has  been  given  in  certain  cases  by  our  government 
to  our  consuls  and  diplomatic  officials  to  do  this,  provided, 
however,  that  the  consent  of  the  government  within  whose 
jurisdiction  they  reside  is  obtained. 

\Vlien  this  function  is  accepted,  which  must  be  done  only 
with  the  approval  of  the  Department  of  State,  the  diplomatic 
or  consular  officer  becomes  the  agent  of  the  foreign  govern- 
ment as  to  the  duties  he  may  perform  for  its  nationals.  He 
becomes  responsible  directly  to  it  for  his  discharge  of  those 
duties,  and  that  government  alone  is  responsible  for  his  acts 
in  relation  thereto.  He  does  not,  however,  for  this  purpose 
become  a  diplomatic  or  consular  officer  of  the  foreign  govern- 
*  Art.  5,  U.  S.  Consular  Regulations,  1890. 


230     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

ment  concerned.    This  is  forbidden  by  the  Constitution  of  the 
United  States.^ 

1 06.  Duties  of  Consular  Officers. — It  is  a  primary  duty 
of  consular  officers  "to  endeavor  on  all  occasions  to  maintain 
and  promote  all  the  rightful  interests  of  citizens  and  to  protect 
them  in  all  privileges  that  are  provided  for  by  treaty  or  are 
conceded  by  usage." ^  The  powers  and  duties  of  consular 
officers  in  regard  to  their  nationals  is  governed  largely  by  the 
laws  of  the  United  States.  As  representatives  of  their  country 
they  should  do  their  utmost  to  protect  them  before  the  au- 
thorities of  the  country  in  all  cases  where  they  are  unjustly 
treated.  It  is,  of  course,  an  obligation  upon  all  nationals  of 
the  United  States  to  observe  the  laws  of  the  country  where 
they  are  sojourning.  If  consular  officers  fail  to  secure  redress 
from  the  local  authorities  in  the  case  of  ill  treatment,  the  con- 
sular officer  should  report  it  to  his  consular  or  diplomatic 
superior  in  the  country  and  to  the  Department  of  State. 

For  many  and  evident  reasons  it  is  considered  desirable  that 
a  consular  officer  should  keep  a  register  of  American  citizens 
domiciled  in  his  jurisdiction.  This  is  especially  of  importance, 
since  the  act  of  1906  requiring  under  certain  circumstances  a 
declaration  of  citizenship  and  the  establishment  of  such  a  regis- 
ter and  its  upkeep  may  easily  become  a  most  important  duty 
on  the  part  of  the  consul.  All  naturalized  citizens  of  the 
United  States  while  in  foreign  countries  are  entitled  to  receive 
the  same  protection  of  persons  and  property  which  is  accorded 
to  native-born  citizens.' 

The  duties  of  a  consul  in  seaports  with  respect  to  the  mer- 
chant vessels  of  the  United  States  are  very  extensive.  They 
are  set  forth  in  detail  in  the  consular  regulations  and  include 
certain  jurisdiction  over  the  vessel,  its  officers,  and  crew  which 
has  already  been  discussed  elsewhere,  and  the  shipment  and 

»  U.  S.  Consular  Regulations,  1896,  pp.  60,  61,  178. 
*  Art.  171,  U.  S.  Consular  Regulations,  1896. 
»  Revised  Statutes  of  the  U.  S.,  sec.  2000. 


RIGHTS  AND  DUTIES  OF  CONSULAR  OFFICERS     231 

discharge  of  seamen,  their  wages  and  effects,  their  relief  and 
transportation,  their  desertion  and  disputes,  etc. 

Amons  the  miscellaneous  matters  with  which  the  consul  is 
charged  by  law  or  otherwise  are  the  issuance  of  passports,  the 
collecting  and  reporting  of  commercial  opportunities,  those 
concerning  Chinese  laborers,  quarantine  regulations,  the  im- 
portation of  cattle  and  hides,  immigration,  customs  regulations, 
invoices  of  importations,  notarial  services,  and  the  care  of  per- 
sonal effects  of  citizens  dying  within  their  jurisdiction. 

In  addition  to  these  duties  in  countries,  principally  in  the 
Orient,  where  exterritoriality  exists,  consular  officers  have 
judicial  powers  of  a  more  or  less  extended  jurisdiction,  varying 
with  the  country  and  the  treaties  entered  into  by  the  United 
States  and  the  countries  concerned.  Among  these  countries 
are  Turkey  in  Europe  and  other  Turkish  territory,  China, 
Persia,  Siam,  and  certain  of  the  South  Sea  Islands.  Consuls 
in  these  countries  have  both  civil  and  criminal  jurisdiction, 
but  they  are  to  be  exercised  in  conformity  with  the  laws  of  the 
United  States,  with  the  common  law  and  the  law  of  equity  and 
admiralty,  and,  finally,  with  decrees  and  regulations  having 
the  force  of  law  made  by  the  ministers  of  the  United  States,  in 
each  country  respectively,  to  supply  defects  and  deficiencies 
when  the  above-mentioned  laws  fail  to  apply.^ 

The  jurisdiction  allowed  to  consular  officers  in  civilized  coun- 
tries over  disputes  between  their  countrymen  on  shore  is,  on 
the  other  hand,  voluntary  and  in  the  nature  of  arbitration 
and  relates  more  especially  to  matters  of  trade  and  commerce. 

In  case  of  arrest  and  imprisonment  of  fellow  nationals  it  is 
the  duty  of  a  consular  officer,  if  appealed  to  and  if  possible,  to 
see  that  both  the  place  of  confinement  and  the  treatment  of 
the  prisoners  are  such  as  would  be  regarded  in  the  United 
States  as  proper  and  humane.  If  a  request  for  assistance  is 
refused,  the  consular  officer  should  claim  all  the  rights  con- 
ferred upon  him  by  treaty  or  convention  and  communicate  at 
'  U.  S.  Consular  Regulations,  189G,  Art.  30. 


232  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

once  with  the  diplomatic  representative  in  the  country,  if  there 
be  one,  and  with  the  Department  of  State.  When  reasonable 
requests  of  this  nature,  in  accordance  with  long-estabHshed 
usage,  are  made,  he  should,  if  they  are  refused,  make  suitable 
representations  to  the  proper  local  authority  and  also  advise 
the  legation  or  embassy  and  the  home  government. 

A  consular  oflBcer  of  the  United  States  has  no  power  to  cele- 
brate marriages  in  a  Christian  country  between  citizens  of  the 
United  States,  unless  specifically  authorized  to  do  so  by  the 
laws  of  the  country  in  which  his  consulate  is  placed.  On  ac- 
count of  the  uncertainty  which  is  involved  in  such  matters, 
the  State  Department  deems  it  wiser  and  safer  to  forbid  the 
solemnization  of  marriages  by  consular  oflBcers  in  any  case. 
They  may,  however,  act  as  official  witnesses  where  one  of  the 
persons  concerned  is  a  citizen  of  the  United  States,  and  they 
shall  give  the  certificate  of  such  marriage  to  each  person  and 
send  one  to  the  Department  of  State. ^ 

In  time  of  war  it  is  the  duty  of  consuls  to  report  movements 
of  war  and  other  vessels  of  the  enemy  and  to  endeavor  to  guard 
against  violations  of  the  laws  of  neutrality  and  of  the  carriage 
of  contraband  to  such  an  extent  as  the  laws  of  the  foreign 
country,  the  existing  treaties,  and  the  rules  of  international 
law  permit. 

107.  Foreign  Consular  Systems. — In  France  the  consular 
system  was  in  1880  and  1883  practically  constituted  a  branch 
of  the  diplomatic  service.  It  originates  from  the  same  source 
and  is  to  an  extent  interchangeable.  They  have  practically 
the  same  preliminary  preparation  for  both  services  and  the 
same  examination  for  regular  entry  into  the  services  preceded 
by  probationary  services  out  of  France  and  French  territory. 
This  union  of  the  diplomatic  and  consular  service  remains 
peculiar  to  the  French  service,  although  such  transfers  are  not 
unknown  in  the  English  service  but  without  the  complete 
assimilation  of  the  French  service. 

*  U.  S.  Consular  Regulations,  1896,  pp.  164-6. 


RIGHTS  AND  DUTIES  OF  CONSULAR  OFFICERS     233 

The  present  German  system  of  consuls  and  consulates  was 
established  in  1873.  The  legal  and  commercial  experts  are 
directly  responsible  to  the  central  government  and  charged  as 
one  of  their  principal  duties  with  the  task  of  keeping  the  gov- 
ernment informed  of  all  that  may  be  of  interest  to  German 
traders.  "These  reports  are  said  to  have  contributed  greatly 
to  the  recent  and  wonderful  expansion  of  German  trade."  ^ 

The  British  consular  system  is  not  unlike  that  of  the  United 
States  but  with  less  intimate  relation  to  commerce  and  trade, 
partly  due,  so  far  as  the  consuls  of  the  United  States  are  con- 
cerned, to  the  system  of  consular  invoices  required  of  our  con- 
suls. It  has  connection  and  relations  with  the  government 
board  of  trade  of  Great  Britain  not  unlike  those  existing  be- 
tween the  department  of  commerce  and  the  consular  system 
of  the  United  States.  The  trade  reports  emanating  from  con- 
sular ofEcers  of  both  countries  have  become  more  important 
in  late  years  and  serve  to  stimulate  trade  and  commerce 
abroad.  In  the  absence  of  naval  vessels  and  authorities  the 
British  consul  becomes  the  senior  naval  officer  present. 

108.  Termination  of  Consular  Functions. — The  term  of  a 
consular  officer  ends  through  death,  resignation,  promotion, 
recall,  dismissal,  revocation  of  exequatur,  or  a  war  between 
the  two  countries  with  which  he  is  concerned. 

A  request  for  the  recall  of  a  consul  by  the  foreign  govern- 
ment is  less  drastic  than  the  revocation  of  his  exequatur,  but 
the  absolute  right  remains  with  the  country  to  which  he  is  ac- 
credited to  withdraw  the  exequatur,  which  automatically  closes 
his  functions  at  that  place.  But  it  not  only  closes  the  functions 
of  the  individual  holding  the  position  of  consul,  but  it  leaves 
the  sending  state  without  any  representative  or  agent  in  the 
locality  and  hence,  if  done  abruptly  and  without  explanation, 
becomes  a  slight  to  the  sending  government  and  may  easily 
lead  to  reprisal. 

Under  these  circumstances  it  may  become  necessary  to  place 
>  "  Encyclopaedia  Britannica,"  vol.  VII,  p.  21,  11th  ed. 


234     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

the  archives  and,  to  an  extent,  the  duties  of  the  departing  con- 
sul in  the  hands  of  a  consul  of  a  third  state,  which  should  be 
readily  permitted  by  the  foreign  state. 

A  change  in  the  ruler  of  a  country  does  not  cause  a  termina- 
tion of  the  functions  of  a  consular  officer;  a  state  of  anarchy 
naturally  requires  his  presence  at  his  post,  and  it  is  doubtful 
whether  his  functions  cease  if  his  district  is  annexed,  occupied, 
or  conquered  by  another  state  than  the  one  to  which  he  is 
accredited. 

log.  Exterritoriality.  Consuls  with  Judicial  Functions. — 
The  general  principles  causing  ex-  or  extra-territoriality  are 
given  by  Moore  as  follows: 

"  Owing  to  diversities  in  law,  custom,  and  social  habits,  the 
citizens  and  subjects  of  nations  possessing  European  civiliza- 
tion enjoy  in  countries  of  non-European  civilization,  chiefly  in 
the  East,  an  extensive  exemption  from  the  operation  of  the 
local  law.  This  exemption  is  termed  'extraterritoriality.' 
It  is  generally  secured  by  treaties  and  in  some  instances  is 
altogether  based  upon  them,  and  its  exercise  is  usually  regulated 
by  the  legislation  of  the  countries  to  whose  citizens  or  subjects 
the  privilege  belongs.  Under  this  system  jurisdiction  is  exer- 
cised by  foreign  officials,  most  frequently  the  diplomatic  and 
consular  officers,  over  persons  of  their  own  nationality." 

The  power  of  commencing  original  civil  and  criminal  proceed- 
ings is  vested  in  consuls  exclusively  except  in  capital  or  very 
grave  criminal  cases  or  when  consuls  are  interested  as  prin- 
cipals or  witnesses.  In  these  cases  when  there  is  no  judicial 
court  established  the  matter  comes  under  the  charge  of  the 
diplomatic  agent. 

In  countries  not  inhabited  by  any  civilized  people  or  recog- 
nized by  any  treaty  with  the  United  States,  consular  officers 
are  given  power  by  law  to  hear  and  determine  civil  cases  where 
the  amount  does  not  exceed  $1,000,  exclusive  of  costs,  and 
where  the  imprisonment  does  not  exceed  sixty  days. 

Candidates  for  appointment  to  countries  where  consular 


RIGHTS  AND  DUTIES  OF  CONSULAR  OFFICERS     235 

courts  and  judicial  powers  exist  are  required  to  pass  a  supple- 
mentary examination  in  the  principles  of  common  law,  the 
rules  of  evidence,  and  the  trial  of  civil  and  criminal  cases. 

By  the  creation  of  a  United  States  court  in  China,  with  a 
federal  judge,  a  district  attorney,  and  other  oflBcers,  and  with 
headquarters  at  Shanghai,  the  minister  and  consuls  in  China 
are  relieved  from  a  great  burden  of  duties.  The  consuls,  how- 
ever, still  have  original  jurisdiction  in  minor  civil  and  criminal 
cases,  with  right  of  appeal  to  this  court. 

As  a  rule,  it  may  be  said  in  conclusion  that  by  the  treaties 
made  with  countries  possessing  a  degree  of  civilization  by 
which  exterritoriality  is  granted  that  "the  national  sover- 
eignty and  law  are  transferred  bodily  onto  a  foreign  soil  and 
made  applicable  to  citizens  or  subjects  of  the  nationality  dwell- 
ing there.  Under  this  jurisdiction  are  their  rights  as  between 
themselves,  and  as  between  them  and  the  natives,  and,  with 
certain  restrictions,  between  them  and  resident  foreigners  of 
other  nationality."^ 

TOPICS  AND  REFERENCES 

1.  Historical  Sketch  of  Consulates — 

Stowell,  "Le  Consul,"  Introd.  Oppenheim,  2d  ed.,  vol.  I,  482-5. 
Phillimore,  3d  ed.,  vol.  II,  265-270. 

2.  The  Consul  and  His  General  Functions — 

Stowell,  "Le  Consul,"  15,  147.     Oppenheim,  2d  ed.,  vol.  I,  490-3. 
PhilUmore,  3d  ed.,  vol.  II,  270-286.     U.  S.  Consular  Regulations, 
1896.     Stowell,  "Consular  Cases  and  Opinions." 

3.  Classification  and  Precedence  of  Consuls — 

Van  Dyne;  "Our  Foreign  Service,"  128-133.  Moore's  "Digest," 
vol.  V,  2-6,  .58-60.  Oppenheim,  2d  ed.,  vol.  I,  485-7.  "U.  S. 
Na\'y  Regulations,  1913,"  Arts.  1117-18,  1119,  1253,  1273. 

4.  Granting  of  Exequatur — Appointment  of  Consuls — 

Stowell,  "Le  Consul,"  207-216.  U.  S.  Consular  Regulations,  1896, 
12-27,  and  41.     Oppenheim,  2d  ed.,  vol.  I,  487-491. 

5.  Rights  and  Privileges  of  Consular  Officers — 

Moore's  "Digest,"  vol.  V,  32-58,  60-92.  U.  S.  Consular  Regula- 
tions, 1896,  27-37.     Oppenheim,  2d  ed.,  vol.  I,  493-9.     Stowell, 

>  Foster,  "Practice  of  Diplomacy,"  p.  231. 


236     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

"Le  Consul."     Stowell,  "Consular  Cases  and  Opinions."     Lud- 
wig,  "Consular  Treaty  Rights." 

6.  Duties  of  Consular  Officers — 

Stowell,  "Le  Consul."  Stowell,  "Consular  Cases  and  Opinions." 
U.  S.  Consular  Regulations.  Van  Dyne,  "Our  Foreign  Service," 
chap.  III. 

7.  Foreign  Consular  Systems — 

Stowell,  "Le  Consul,"  Appendices  B,  C,  and  D,  Bibliography. 
Phillimore,  3d  ed.,  vol.  II,  270-286,  311-312.  "Encyclopaedia 
Britannica,"  11th  ed.,  vol.  VII,  "Consul." 

8.  Termination  of  Consular  Functions — 

Oppenheim,  2d  ed.,  vol.  I,  496-7.  Stowell,  217-222.  Moore's 
"Digest,"  vol.  V,  29-32. 

9.  Exterritoriality  and  Consuls  with  Judicial  Functions — 

Phillimore,  3d  ed.,  vol.  II,  337-342.  Moore's  "Digest,"  vol  V, 
37-40.    Foster's  "Practice  of  Diplomacy."  230-7. 


CHAPTER  XII 

INTERNATIONAL  AGREEMENTS.    NEGOTIATIONS. 
CONGRESSES  AND  CONFERENCES 

110.  International  Agreements. — The  development  of  mod- 
ern states  is  accompanied  by  constant  and  increasing  interna- 
tional intercourse,  which  in  turn  creates  various  international 
agreements  differing  in  kind  and  importance.  Of  these,  as 
Nys  well  says,  the  smaller  portion  only  is  devoted  to  the  set- 
tlement of  conflicts  and  the  regulation  of  differences;  they  have 
become  instead  more  pacific  in  their  aims,  with  a  general  desire 
to  better  relations  already  peaceable  or  to  create  new  regula- 
tions as  a  result  of  increasing  intimacy  of  intercourse  and 
friendship.  They  are  largely,  in  fact,  agreements  to  better 
accomplish  worthy  ends  by  the  common  effort  of  several  or 
manv  states.^ 

111.  Negotiations. — The  negotiations  of  modern  days  are 
more  direct  and  frank  than  those  of  times  gone  by.  Diplomacy 
and  the  art  of  negotiation  in  earlier  times  produced  a  number 
of  treatises  bearing  upon  this  subject.  Whatever  may  have 
been  their  utility  in  those  times,  they  have  become  largely  ob- 
solete, the  experience  and  the  knowledge  of  the  negotiator  sup- 
planting the  theoretical  maxims  and  the  lengthy  dissertations 
that  served  as  the  instructions  of  the  home  government.  Per- 
haps no  better  guide  to  the  modern  diplomatist  can  be  found 
than  the  instructions  given  by  the  first  secretary  of  state  to 
Mr.  Jay,  to  the  effect  that  "it  is  the  President's  wish  that  the 
characteristics  of  an  American  minister  should  be  marked  on 
the  one  hand  by  a  firmness  against  improper  compliances,  and 

» Nys,  "Le  Droit  International,"  1912,  vol.  II,  p.  480. 

237 


238     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

on  the  other  hand  by  sincerity,  candor,  truth,  and  prudence, 
and  by  a  horror  of  finesse  and  chicane."^  It  might  be  well  to 
add  to  this  the  words  of  Montague  Bernard  when  he  says 
"  that  the  real  end  of  negotiating  is  to  find  a  point  at  which 
the  interests  of  both  parties  can  be  made  to  coincide."  ^ 

Negotiations  generally  begin  with  an  oral  exchange  of  views 
upon  the  subject  under  discussion  between  the  minister  of  for- 
eign affairs  and  the  diplomatic  agent  of  the  state  with  whom 
he  treats.  This  is  generally  known  as  the  state  of  pourparlers. 
This  may  be  followed  by  final  exchange  of  notes,  written  and 
oflBcial  in  their  character  and  which  may  settle  the  matter 
under  treatment  between  the  two  states,  and  which  communica- 
tions are  often  known  as  memoranda.  At  other  times  a  formal 
convention  or  treaty  duly  signed  by  the  diplomatic  agents  may 
result,  which  settles  the  dispute;  or  a  working  agreement  may 
be  established  of  a  more  or  less  temporary  character — in  other 
words,  a  "modus  vivendi." 

112.  Congresses  and  Conferences. — A  very  important 
function  is  performed  by  the  creation  of  a  congress  or  confer- 
ence to  deal  with  international  negotiation  and  the  settlement 
of  affairs.  These  bodies  have  often  marked  historical  epochs 
and  accomplished  arrangements  of  the  highest  value,  even 
when  they  mark  the  triumphant  results  of  sanguinary  war- 
fare, for  they  establish  peace  and  replace  brute  force  by  peace- 
able discussion  and  a  final  agreement.  Commencing  with  the 
congress  of  Westphalia  or,  more  properly  speaking,  of  those  of 
Miinster  and  Osnabriick,  in  session  from  1644-8;  these  were 
followed  by  the  important  ones  of  Utrecht,  in  1713,  of  Vienna, 
in  1814  and  1815;  of  Paris,  in  1856;  and  of  Berlin,  in  1878; 
after  these  came  the  conferences  of  The  Hague  in  1899-1907, 
and  of  London,  in  1908-9,  all  being  of  world-wide  importance, 
but  marking  varying  historical  epochs  and  agreements. 

There  is  a  similarity  in  the  constitution  and  routine  of  a 

*  American  State  Papers,  "Foreign  Relations,"  497. 

•  "Lectures  on  Diplomacy,"  Bernard,  p.  150. 


INTERNATIONAL  AGREEMENTS  239 

congress  and  a  conference,  but  there  is  a  difference  in  the  rank 
of  the  delegates  and  in  the  dignity  of  the  two  bodies.  Although 
sovereigns  of  states  attended  by  their  ministers  no  longer  ap- 
pear in  a  congress,  yet  its  representatives  are  generally  prime 
ministers  and  ministers  of  foreign  affairs  of  the  various  coun- 
tries represented,  and  the  congress  of  the  present  day  as  a  con- 
sequence is  of  more  political  force  and  prestige  than  a  confer- 
ence which  is  composed  simply  of  authorized  envoys  and 
plenipotentiaries  of  moderate  rank.  Bluntschli  gives  as  the 
difference  that  in  a  congress  the  governments  themselves  in 
a  sense  compose  the  membership  of  the  congress,  while,  as  a 
rule,  the  conference  is  composed  of  their  delegate  plenipotenti- 
aries.^ The  tendency  both  in  large  congresses  and  conferences 
in  latter  years  is  to  become  more  and  more  deliberative  assem- 
blies, unknown  in  former  days,  with  special  commissions  and 
committees  from  the  general  body  to  study  the  complex  ques- 
tions. M.  F.  de  Martens,  in  speaking  of  The  Hague  confer- 
ences, draws  a  picture  of  a  plenary  session  of  that  conference, 
where  lengthy  discourses  were  delivered,  sometimes  very  elo- 
quent, which  provoked  applause  and  almost  ovations,  being 
unexpectedly  visited  by  distinguished  diplomatists  of  the  past 
like  Kaunitz,  Metternich,  Talleyrand,  and  even  the  later  Bis- 
mai*ck,  who,  struck  with  amazement  and  horror  at  such  extraor- 
dinary proceedings,  beg  to  be  reconducted  to  the  peaceful 
kingdom  of  shades  from  which  they  have  for  the  moment 
appeared. 

A  decided  advantage  in  modern  times  is  the  publicity  of  the 
proceedings  and  remarks  and  the  fact  that  often  a  running 
commentary  of  the  results  is  given  by  the  Comite  de  Redac- 
tion, which  reduces  the  doubt  in  many  cases  and  aids  in  the 
interpretation  of  the  resulting  conventions  or  declarations. 

In  both  congresses  and  conferences  the  states  have  but  one 
vote,  and  all  governments  are  upon  an  equality,  and  a  unan- 
imous conclusion  is  generally  necessary  to  become  finally  ac- 
» Bluntschli,  "Le  Congr^  de  BerUn,"  etc.,  R.  D.  I.,  LXI,  p.  31. 


240  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

cepted.  The  formal  minutes  of  these  bodies  are  known  as  the 
protocol  and,  though  not  recording  all  details,  give  the  votes 
as  well  as  the  reservations,  the  dissenting  opinions,  and  the 
protests  of  the  various  countries. 

The  language  employed  in  the  various  conferences  and  con- 
gresses of  the  present  day  is  French  as  the  language  best  under- 
stood by  countries  of  continental  Europe.  It  has  been  an 
accepted  usage  to  keep  the  minutes,  memoranda,  and  other 
records  of  these  bodies  in  that  language.  Of  late,  following 
the  procedure  of  The  Hague  conferences,  in  addressing  the 
conferences,  etc.,  the  use  of  the  mother  tongue  of  the  speaker 
is  permitted,  accompanied  by  a  running  translation  of  his 
remarks  in  French. 

No  state  can  be  a  party  to  a  conference  or  congress  unless 
it  has  been  invited  or  admitted  upon  its  own  request  or  that  of 
another  participating  state.  It  is  customary,  however,  to  in- 
vite all  important  civilized  states  interested  in  the  objects  of 
the  particular  congress. 

It  is  customary  but  not  mandatory  to  select  as  the  presi- 
dent the  first  delegate  of  the  state  in  whose  territory  the  meet- 
ing is  held.  In  case  the  first  delegate  is  not  the  foreign  minister 
of  this  state,  the  foreign  minister  generally  opens  the  congress. 
In  the  London  naval  conference  the  Earl  of  Desart,  the  first 
British  delegate,  was  president  of  the  body;  the  British  dele- 
gation presented  the  programme  with  the  bases  and  suggestions 
presented  by  the  other  states  represented.  It  is  desirable  for 
each  delegation  with  the  assistance  of  experts  to  study  the 
subjects  proposed  for  the  congress  or  conference  at  an  early 
date  in  order  to  save  valuable  time  and  expedite  the  proceed- 
ings of  the  body. 

The  finished  product,  convention,  or  declaration  of  the  con- 
ference is  signed  by  the  delegates  of  the  states  of  which  they 
are  representatives,  the  precedence  being  generally  arranged  in 
alphabetical  order  as  their  names  read  in  French.  A  personal 
seal  accompanies  the  signature  of  the  name  of  the  delegate. 


INTERNATIONAL  AGREEMENTS  241 

The  name  given  to  the  result  of  a  congress  or  convention 
varies,  being  variously  called  "the  final  act,"  "the  general 
act,"  "the  protocol,"  "the  convention,"  or  "the  declaration." 
The  word  convention  was  generally  used  by  The  Hague  con- 
ferences and  that  of  declaration  by  the  London  naval  confer- 
ence. 

TOPICS  AND  REFERENCES 

1.  International  Agreements — 

Oppenheim,  2d  ed.,  vol.  I,  512-518,  536-9.  Montague  Bernard, 
"Lectures  on  Diplomacy,"  lectures  II  and  III.  Moore's  "Di- 
gest," vol.  V,  210-214. 

2.  Negotiations — 

Oppenheim,  2d  ed.,  vol.  I,  529-532.  Foster's  "Practice  of  Di- 
plomacy," 243-261.    Phillimore,  3d  ed.,  vol.  Ill,  1-17. 

3.  Congresses  and  Conferences — 

Higgins,  "The  Hague  Peace  Conferences."  Bernard's  "Lectures 
on  Diplomacy,"  chap.  I.  Baldwin,  I,  A.  J.  I.  L.,  1907,  569-623. 
Scott's  "The  Hague  Conferences,"  chaps.  I,  II,  and  III.  Nys, 
**Le  Droit  International,"  2d  ed.,  vol.  II,  486-496. 


CHAPTER  XIII 
INTERNATIONAL   TREATIES 

113.    Definition  of  a  Treaty.    Early  Existence  of  Treaties.— 

Treaties  between  states  are  formal  agreements  or  contracts, 
the  result  of  international  negotiation,  by  which  we  mean  in 
this  case  such  intercourse,  discussion,  and  agreement  as  be- 
come necessary  for  the  attainment  of  a  final  understanding 
between  the  contracting  parties  on  certain  questions  of  common 
interest. 

A  treaty  is  under  international  law  a  legal  obligation  and 
under  the  proper  rules  of  conduct  a  moral  obligation. 

Treaties  form  one  of  the  sources  of  international  law  and  are 
of  very  early  origin.  Recent  discoveries  give  accounts  of  a 
treaty  of  alliance  concluded  before  the  Christian  era  between 
the  King  of  Babylon  and  the  King  of  Egypt.  So  far  as  it  can 
be  ascertained  this  treaty  was  faithfully  observed  by  both  parties 
concerned.  Rome  also  at  a  later  date  in  the  ante-Christian 
era  through  her  treaties  laid  the  foundation  of  Roman  domina- 
tion in  Italy.  The  treaties  of  these  ancient  countries,  sanctioned 
by  an  oath,  became  almost  a  religious  obligation  and  were  ap- 
parently at  least  as  faithfully  observed  as  at  the  present  day. 

As  to  the  obligations  of  a  treaty,  the  words  of  Vattel  apply 

to  the  present  time  as  well  as  the  times  of  the  writer.    He  says: 

"He  who  violates  his  treaties  violates  at  the  same  time  the 

law  of  nations;    for  he  disregards  the  faith  of  treaties — that 

faith  which  the  law  of  nations  declares  sacred;   and  so  far  as 

depends  on  him  he  renders  it  vain  and  ineffectual.     Doubly 

guilty,  he  does  an  injury  to  his  ally,  he  does  an  injury  to  all 

nations,  and  inflicts  a  wound  on  the  great  society  of  mankind."* 

1  Vattel,  book  II,  chap.  XV,  sec.  221. 
242 


INTERNATIONAL  TREATIES  243 

114.  Nature  and  Classification  of  Treaties. — It  is  very 
difficult,  if  not  practically  impossible,  to  make  any  general 
classification  of  treaties;  they  can  be  and  have  been,  it  is  true, 
grouped  in  regard  to  their  purposes,  but  these  purposes  are 
growing  in  number  and  diversity  every  day;  they  are,  for  in- 
stance, treaties  of  alliance,  of  peace,  of  protection,  of  guarantee, 
of  commerce,  etc.  As  to  the  names  of  treaties,  there  are  also 
many  terms  such  as  treaties,  conventions,  protocols,  declara- 
tions, concordats,  cartels,  modi  vivendi,  sponsions,  exchanges 
of  notes,  oral  agreements,  or  momentary  arrangements  by  sym- 
bols like  the  mutual  display  of  the  white  flag  of  truce. 

The  purposes  of  treaties  with  respect  to  state  property  are 
such  as  those  of  cession,  boundary,  and  in  regard  to  post,  tele- 
graph, and  railways.  For  political  purposes  there  are  those  of 
alliance,  of  protection,  of  neutrality,  of  guarantee,  of  arbitration, 
of  mediation,  and  of  peace  and  those  which  are  the  products  of 
The  Hague  conferences  relating  to  international  law  and  usages. 
For  commerce  and  intercommunication  and  navigation  there 
are  consular  treaties,  commercial  and  reciprocity  treaties, 
treaties  in  regard  to  extradition,  copyright,  trade-marks;  with 
respect  to  money,  measures  and  weights,  to  taxes  and  customs 
duties,  the  rules  of  the  road  at  sea;  with  regard  to  health,  agri- 
culture, industry  and  emigration;  as  to  the  rules  of  naval  and 
land  warfare;  and  also  with  respect  to  the  humane  efforts  of 
the  Red  Cross  activities. 

Treaties  or  conventions,  especially  of  a  special  temporary 
nature,  can  be  agreed  upon  not  alone  in  writing  but  by  oral 
statements  or  even  by  symbols.  The  display  of  the  white 
flag  in  time  of  war  is  a  proposition  for  the  suspension  of  hostili- 
ties in  order  to  enter  into  a  brief  truce  for  negotiation.  This 
offer,  if  met  by  the  display  of  a  similar  flag,  conveys  the  accep- 
tance of  the  offer  and  estal)lishes  an  agreement  which  is  by 
usage  as  binding  as  any  written  one  should  be. 

Oral  treaties  of  alliance  and  friendship  have  been  known, 
such  as  that  concluded,  in  1697,  by  Peter  the  Great  of  Russia 


244  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

with  the  elector  of  Brandenburg  and  the  treaty  of  Tilsit,  the 
results  of  the  personal  conference  on  the  raft  on  the  Niemen 
between  the  Czar  Alexander  and  Napoleon  I  in  1807. 

In  the  present  days,  with  the  exception  of  the  brief  truces 
just  alluded  to,  treaties  take  the  form  of  written  documents 
signed  by  specially  authorized  representatives  of  the  parties 
concerned  and  ratified  by  the  home  governments  in  accordance 
with  their  constitutional  law.  No  matter  whether  a  treaty 
takes  the  name  of  an  act,  convention,  or  declaration,  or  that  of 
a  treaty  pure  and  simple,  there  is  no  essential  difference  in  such 
international  agreements,  and  their  binding  force  after  rati- 
fication remains  the  same  whether  it  is  the  Geneva  convention, 
the  declaration  of  Paris,  the  final  act  of  the  Vienna  congress, 
or  the  treaty  of  Berlin. 

115.  The  Parties  to  a  Treaty.— The  right  to  enter  into  a 
treaty  with  other  states  is  an  inherent  right  of  every  inde- 
pendent state.  As  to  a  protected  or  partly  independent  state, 
if  it  has  been  allowed  to  retain  its  sovereignty  to  the  extent  of 
making  treaties  by  its  protector  or  suzerain,  it  can  legally  be 
a  party  to  a  treaty.  Cuba,  for  instance,  has  by  its  treaty 
with  the  United  States  limited  its  treaty-making  power,  while 
the  various  States  of  the  United  States  by  the  term  of  their 
union  are  not  competent  to  enter  into  treaties  with  foreign 
nations. 

States  with  limitations  as  to  jurisdiction  over  foreigners  like 
Turkey,  China,  Siam,  and  Persia  have  full  competency  as  to 
treaty-making  power,  and  the  same  may  be  said  of  peoples 
less  than  civilized.  The  treaties  made  by  the  British- American 
colonies  and  the  United  States  with  the  native  American  In- 
dians are  a  part  of  the  history  and  policy  of  our  country. 

Egypt  can  enter  into  negotiations  of  a  certain  kind  inde- 
pendently of  Turkey,  while  some  colonial  states  like  the  Do- 
minion of  Canada  can  be  parties  to  international  negotiation 
with  the  consent  of  the  mother  state,  but  without  the  negotia- 
tions being  in  charge  of  the  mother  state.    Negotiations  of  a 


INTERNATIONAL  TREATIES  245 

state  with  the  Pope  are  not  international  negotiations,  although 
the  formalities  connected  with  such  negotiations  are  usually 
observed  in  such  cases.  Negotiations  on  the  part  of  a  state 
with  a  body  of  foreign  bankers  or  contractors  concerning  loans, 
the  building  of  railways,  etc.,  are  not  international  negotiations. 

Besides  the  capacity  for  contracting  treaties  which  exists  in 
the  state  itself,  the  persons  or  representatives  who  negotiate 
the  treaty  must  have  full  powers  from  their  government.  Of 
course,  there  are  certain  persons  under  certain  circumstances 
who  have  a  limited  authority  of  treating  within  their  sphere  of 
power.  As  an  instance,  we  may  refer  to  commanding  officers 
of  naval  and  military  forces  in  time  of  war,  who  can  enter  into 
agreements  for  certain  purposes  without  special  authority  and 
without  requiring  ratification  by  the  home  governments. 

If  any  agent  of  a  state  exceeds  his  powers,  the  state  he  rep- 
resents is  not  bound  thereby  unless,  as  Hershey  says:  "  When 
certain  material  advantages  have  been  derived  from  such 
action,  it  is  the  duty  of  the  state  receiving  such  benefits  either 
to  make  compensation  or  to  restore  things  to  their  former 
conditions  so  far  as  practicable."^ 

The  treaty-making  power  of  the  United  States  is  vested  in 
the  President,  but  by  and  with  the  advice  and  consent  of  the 
Senate,  provided  two  thirds  of  the  senators  present  concur.  If 
the  concurrence  is  not  given,  the  treaty  fails,  by  our  municipal 
law,  in  attaining  legal  reality  and  ratification. 

In  accordance  with  the  French  Constitution  the  President 
of  the  French  Republic  exercises  treaty-making  power,  but 
treaties  of  peace,  of  commerce,  and  of  finance  are  not  valid 
without  the  co-operation  of  the  French  legislative  body. 

The  Emperor  of  Germany,  also,  has  the  treaty-making 
power;  but  treaties  that  concern  boundaries,  commerce,  and 
certain  other  matters  require  the  co-operation  of  the  Bundes- 
rath  and  Reichstag. 

ii6.  Matters  Necessary  to  the  Validity  of  Treaties. — The 
first  of  these,  after  the  recognition  of  the  powers  and  legitimacy 
'  Hershey's  "Essentials,"  p.  313. 


246  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

of  the  agents  and  of  the  completion  of  the  negotiations,  is  the 
fact  of  the  free  reciprocal  consent  of  both  contracting  parties, 
which  is  indispensable  to  the  validity  of  a  contract  between 
individuals,  and  is  especially  requisite  for  a  treaty  between 
states.  Mere  negotiations,  preparatory  communications,  are  in 
their  nature  not  of  a  binding  nature.  Consent  must  not  have 
been  given  in  error  or  produced  by  deceit,  either  by  misinter- 
pretation or  by  concealment  of  important  facts. ^ 

Contracts  which  have  been  procured  by  force  or  menace 
may  in  accordance  with  municipal  law  be  rendered  void.  This 
does  not  in  a  general  way  apply  to  treaties.  Treaties  of  peace 
are,  for  instance,  the  result  of  force  exerted  by  one  state  upon 
another.  But  force  exerted  personally  upon  a  sovereign  or  a 
representative  of  a  state  is  another  matter.  The  resignation 
under  duress,  personal  restraint,  of  Ferdinand  VII,  by  Napo- 
leon, from  the  throne  of  Spain  was  invalid,  while  the  abdication 
of  Napoleon  himself  at  Fontainebleau,  being  the  result  of  de- 
feat in  open  war,  was  valid,  as  it  was  not  the  result  of  personal 
force  or  treachery. 

Treaties  cannot  contain  engagements  that  are  inconsistent 
with  those  already  entered  into  with  other  states.  Neither  can 
they  contain  engagements  that  are  contrary  to  the  broad  prin- 
ciples of  morality  and  justice  or  the  accepted  tenets  of  interna- 
tional law,  such  as  the  freedom  of  the  high  seas.  They  may 
become  invalid  also  on  the  ground  of  physical  impossibility 
existing  at  the  time  of  the  signing  of  the  treaty  or  arising 
under  later  circumstances. 

117.  Form  and  Ratification  of  Treaties. — "  The  importance 
of  the  subject-matter,"  says  Crandall,  "the  frequent  changes 
in  the  personnel  of  the  contracting  organs,  the  inability  to  con- 
firm by  witness  the  utterances  of  a  state,  render  it  more  neces- 
sary that  contracts  between  nations  should  be  carefully  ex- 
pressed in  writing  than  contracts  between  individuals.  While 
no  particular  form  is  essential  to  the  validity  of  a  treaty,  it  is 
the  practice  in  formal  treaties  to  make  out  and  sign  under  seal 
» PhilUmore,  3d  ed.,  vol.  II,  p.  75. 


INTERNATIONAL  TREATIES  247 

as  many  counterparts  as  there  are  parties,  one  counterpart  to 
be  retained  by  each.  In  case  of  two  parties  only  which  have 
no  common  language  each  counterpart  is  usually  made  out  in 
the  languages  of  both."^ 

There  exists  no  established  rule  concerning  the  arrangement 
of  the  different  parts  of  a  treaty.  It  is  customary  but  not 
mandatory,  however,  to  commence  such  an  instrument  with  a 
preamble  comprising  the  names  of  the  heads  of  the  contract- 
ing states,  the  states  being  placed  in  alphabetical  order  in 
French,  with  their  accredited  representatives,  followed  by  the 
reasons  for  making  such  a  treaty;  after  that  come  the  prin- 
cipal agreements  of  the  treaty  in  numbered  articles;  then  fol- 
low the  miscellaneous  stipulations  concerning  the  duration 
of  the  treaty  and  as  to  its  ratification,  the  accession  of  its 
powers,  and  the  provisions  for  putting  it  in  force;  then  come 
the  regulations. 

By  the  ratification  of  a  treaty  is  meant  the  final  consent  and 
approval  by  the  necessary  department  or  departments  of  the 
home  governments.  Until  this  is  done  the  treaty  is  not  in 
operation  or  its  binding  force  obligatory.  Any  alterations 
made  in  the  treaty  while  in  process  of  confirmation  or  rati- 
fication are  not  valid  so  far  as  that  treaty  is  concerned  and  in- 
volve the  formation  of  a  new  treaty. 

The  reasons  generally  given  for  ratification  are  that  states 
should  have  an  opportunity  of  examining  the  treaty  with  a 
view  to  its  whole  effect  upon  their  interests  and  also  to  its 
effect  upon  public  opinion.  Another  reason  is  that  according 
to  the  law  of  most  states  having  constitutional  governments 
treaties  are  not  valid  without  some  kind  of  consent  from  the 
legislative  assemblies.  These  two  reasons  show  the  necessity 
of  ratifications  and  may  not  reflect  upon  the  work  of  the  rep- 
resentatives of  the  states  concerned  in  their  endeavor  to  make 
a  satisfactory  agreement  to  attain  the  desired  objects.  In 
practice  ratification  is  given  or  withheld  at  discretion. 
*Crandall,  "Treaties,  Their  Making,"  etc.,  p.  16. 


248     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

By  accession  to  a  treaty  is  meant  the  formal  entrance  of  an 
additional  state  so  that  such  state  becomes  a  party  to  the 
treaty  with  all  the  rights  and  duties  consequent  to  such  a 
treaty.  "  Such  accession,"  states  Oppenheim,  "  can  take 
place  only  with  the  original  contracting  parties,  and  accession 
always  constitutes  a  treaty  of  itself.  Very  often  the  contract- 
ing parties  stipulate  expressly  that  the  treaty  shall  be  open  to 
the  accession  of  a  certain  state.  .  .  . 

"But  there  is,  secondly,  another  kind  of  accession  possible. 
For  a  state  may  enter  into  a  treaty  between  other  states  for  the 
purpose  of  guarantee.  This  kind  of  accession  makes  the  ac- 
ceding state  also  a  party  to  the  treaty;  but  the  rights  and  duties 
of  the  acceding  state  are  different  from  the  rights  and  duties 
of  the  other  parties,  for  the  former  is  a  guarantor  only,  whereas 
the  latter  are  directly  affected  by  the  treaty."  ^ 

A  third  state  can,  without  accession  to  the  entire  treaty, 
announce  its  adhesion  to  such  parts  or  principles  of  the  treaty 
as  it  desires  to  adhere  to.  In  such  a  case  it  becomes  a  party  to 
those  parts  of  the  treaty  to  which  it  has  definitely  announced 
its  adhesion.  This  term  is  sometimes  used  synonymously  with 
that  of  accession. 

Article  II,  Section  2,  Clause  2  of  the  Constitution  of  the 
United  States  says:  "  He  (the  President)  shall  have  power,  by 
and  with  the  advice  and  consent  of  the  Senate,  to  make  treaties, 
provided  two  thirds  of  the  senators  present  concur." 

A  treaty,  however,  like  a  statute  law,  must  conform  to  the 
Constitution  of  the  United  States,  and  if  a  provision  either  in  a 
treaty  or  in  a  law  is  in  opposition  to  the  letter  or  principles 
of  the  Constitution,  such  a  provision  must  yield  to  the  superior 
force  of  the  Constitution,  which,  as  organic  law  of  the  United 
States,  is  binding  alike  upon  the  government  and  nation. 

Secretary  Fish,  in  a  letter  to  our  minister  to  England,  says 
in  regard  to  action  by  the  Senate  upon  a  treaty  that  "it  is 
wholly  unnecessary  to  say  to  statesmen  of  the  intelligence 
1  Oppenheim,  "Int.  Law,"  vol.  I,  p.  569. 


INTERNATIONAL  TREATIES  249 

which  always  marks  those  of  the  British  Empire  that  the  re- 
jection of  a  treaty  by  the  Senate  of  the  United  States  implies 
no  act  of  discourtesy  to  the  government  with  which  the  treaty 
may  have  been  negotiated.  The  United  States  can  enter  into 
no  treaty  without  the  advice  and  consent  of  the  Senate,  and 
that  advice  and  consent,  to  be  intelligent,  must  be  discrimi- 
nating; and  their  refusal  can  be  no  subject  of  complaint,  and 
can  give  no  occasion  for  dissatisfaction  or  criticism."^ 

Conditional  ratification,  as  has  been  said,  makes  a  new  treaty 
and  is  not  ratification  in  the  proper  sense  and  creates  a  new 
treaty  especially  if  some  of  the  stipulations  of  the  treaty  not 
previously  reserved  are  omitted  or  if  new  clauses  or  an  amend- 
ing clause  is  added  to  the  treaty, 

"It  is,"  as  Oppenheim  remarks,  "quite  legitimate  for  a 
party  who  has  signed  a  treaty  with  certain  reservations  as  re- 
gards certain  articles  to  ratify  the  approved  articles  only,  and 
it  would  be  incorrect  to  speak  in  this  case  of  a  partial  ratifica- 
tion." 

"Again,"  he  says,  "it  is  quite  legitimate — and  one  ought  not 
in  that  case  to  speak  of  conditional  ratification — for  a  con- 
tracting party  who  wants  to  secure  the  interpretation  of  cer- 
tain terms  and  clauses  of  a  treaty  to  grant  ratification  with  the 
understanding  only  that  such  terms  and  clauses  should  be  in- 
terpreted in  such  and  such  a  way.  Thus  when,  in  1911,  opposi- 
tion arose  in  Great  Britain  to  the  ratification  of  the  declaration 
of  London  on  account  of  the  fact  that  the  meaning  of  certain 
terms  was  ambiguous  and  that  the  wording  of  certain  clauses 
did  not  agree  with  the  interpretation  given  to  them  by  the  re- 
port of  the  draughting  committee,  the  British  Government  de- 
clared that  they  would  only  ratify  with  the  understanding  that 
the  interpretation  contained  in  the  report  should  be  considered 
as  binding  and  that  the  ambiguous  terms  concerned  should 
have  a  determinate  meaning.  In  such  cases  ratification  does 
not  introduce  an  amendment  or  an  alteration  but  only  fixes 
»  Moore's  "Digest,"  vol.  V,  p.  198. 


250  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

the  meaning  of  otherwise  doubtful  terms  and  clauses  of  the 
treaty.  "1 

In  various  cases  the  President  of  the  United  States  has  en- 
tered into  agreements  which  have  not  been  submitted  to  the 
Senate  for  ratification,  either  on  account  of  their  minor  impor- 
tance or  temporary  nature.  These  include  the  adjustment  of 
private  claims  against  foreigners  or  foreign  governments,  the 
arrangement  of  reciprocal  crossing  of  frontiers  between  the 
United  States  and  Mexico  in  the  pursuit  of  marauding  Indians, 
also  the  peace  protocol  in  1898  between  the  United  States  and 
Spain  preliminary  to  the  treaty  of  peace,  the  protocol  signed 
at  Peking  at  the  close  of  the  Boxer  troubles,  and  in  a  number 
of  cases  with  Great  Britain  in  the  establishment  of  modi  vivendi 
as  to  questions  of  fisheries  and  boundaries. 

In  addition  to  the  class  of  agreements  made  by  the  executive 
alone  without  reference  to  the  Senate  of  the  United  States, 
there  are  other  agreements  involving  customs  duties,  copyright 
arrangements,  and  postal  conventions  that  are  entered  into 
under  provisions  enacted  by  Congress.  Treaties  formulated 
with  the  various  tribes  of  American  Indians  are  now  arranged 
for  by  the  legislative  department  by  act  of  Congress. 

ii8.  Enforcement  of  Treaties. — Article  VI  of  the  Constitu- 
tion of  the  United  States  reads  as  follows: 

"  This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made  or 
which  shall  be  made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land;  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding." 

"The  design  of  this  article,  so  far  as  it  relates  to  treaties, 
was  primarily  to  insure  their  execution  by  the  public  authori- 
ties. State  as  well  as  national,  in  spite  of  any  adverse  State 
action.  That  this  was  accomplished  was  fully  established  by 
the  decision  of  the  Supreme  Court,  in  1796,  in  the  case  of  Ware 
^Oppenheim,  "Int.  Law,"  2d  ed.,  vol.  I,  p.  560. 


INTERNATIONAL  TREATIES  251 

V.  Hylton.  In  all  the  opinions  of  the  judges,  including  the 
sole  dissenting  opinion  by  Mr.  Justice  Iredell,  it  is  unanimously 
held  that  a  treaty  under  the  Constitution  repeals  ipso  facto 
State  laws  inconsistent  with  it."^ 

"The  supremacy  of  treaties  over  State  legislation  has  since 
been  drawn  in  question  only  when  they  relate  to  subjects  not 
embraced  in  the  powers  delegated  to  the  central  government. 
.  .  .  The  tendency  of  the  Supreme  Court  on  the  question  is 
disclosed  in  its  decisions  on  treaty  stipulations  defining  the 
privileges  of  aliens  in  succeeding  to  and  disposing  of  property 
located  within  the  States,  a  matter,  in  the  absence  of  a  treaty, 
not  within  the  province  of  the  central  government  yet  naturally 
subject  to  treaty  regulation."  This  matter  was  tersely  put  by 
Mr.  Justice  Swayne,  "who  observed  that  if  the  National  Gov- 
ernment has  not  the  power  to  do  what  is  done  by  such  treaties, 
it  cannot  be  done  at  all,  for  the  States  are  expressly  forbidden 
to  enter  into  any  treaty,  alliance,  or  confederation." ^ 

Some  treaties  are,  however,  dependent  upon  legislative  aid 
or  action.  In  the  case  of  Foster  v.  Neilson  in  the  Supreme 
Court  of  the  United  States  (2  Peters,  2531)  the  court  ruled 
that  "while  a  treaty  is  the  supreme  law  of  the  land  and  oper- 
ates as  such  in  all  matters  not  requiring  legislative  action,  yet 
when  made  dependent  on  legislative  action  it  does  not  take 
effect  until  such  action  is  had." 

Mr.  Richard  Henry  Dana  says  further  upon  this  subject: 
"If  a  treaty  requires  the  payment  of  money,  or  any  other 
special  act  which  cannot  be  done  without  legislation,  the 
treaty  is  still  binding  on  the  nation,  and  it  is  the  duty  of  the 
nation  to  pass  the  necessary  laws.  If  that  duty  is  not  per- 
formed, the  result  is  a  breach  of  the  treaty  by  the  nation,  just 
as  much  as  if  the  breach  had  been  an  affirmative  act  by  any 
other  department  of  the  government.  Each  nation  is  respon- 
sible for  the  right  working  of  the  internal  system  by  which  it 

»  Crandall,  "Treaties  and  Their  Making,"  etc.,  p.  106. 
•Crandall,  "Treaties  and  Their  Making,"  etc.,  p.  107,  108. 


252     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

distributes  its  sovereign  functions;  and,  as  foreign  nations 
dealing  with  it  cannot  be  permitted  to  interfere  with  or  con- 
trol these,  so  they  are  not  to  be  affected  or  concluded  by  them 
to  their  own  injury."  ^  This  is  true  if  the  action  of  the  treaty 
is  constitutional. 

"The  approval  by  Congress  of  a  preliminary  appropriation 
has  never  been  considered  necessary  to  give  validity  to  the 
proceedings  under  a  convention  by  which  disputed  claims  have 
been  submitted  to  a  tribunal  of  arbitration.  President  Jeffer- 
son, before  opening  the  negotiations  of  1803  for  the  purchase 
of  Louisiana  and  of  1806  for  the  purchase  of  Florida,  and 
President  Polk,  before  opening  the  Mexican  negotiations,  ob- 
tained provisional  appropriations.  The  act  of  Congress  of 
June  28,  1902,  made  a  provisional  appropriation  for  the  acquisi- 
tion by  treaty  of  the  right  to  construct  an  interoceanic  canal. 
In  the  treaty  with  Denmark  of  April  11,  1857,  for  the  abolition 
of  the  Sound  dues,  it  was  provided  that  the  treaty  should  take 
effect  as  soon  as  the  stipulated  sum  had  been  tendered  by  the 
United  States  or  received  by  Denmark.  These  are  exceptions. 
The  practice  has  been  to  proceed  to  the  ratification  on  the  au- 
thority of  the  Senate  alone,  and  the  treaty  thus  ratified  has 
been  recognized  both  by  this  and  foreign  governments  as  valid 
and  definitively  concluded  and  Congress  has  never  failed  to 
vote  the  required  appropriation."  ^ 

From  a  historical  review  made  by  Crandall  in  his  valuable 
work  on  "Treaties,"  it  appears  that  treaties  made  which  affect 
the  revenue  laws  of  the  United  States  require  the  execution 
of  Congress.  This  action  has  not  been  confined  to  the  House 
of  Representatives  alone,  though  on  January  26,  1880,  the 
house  voted  that  the  negotiation  by  the  executive  depart- 
ment of  the  government  of  commercial  treaties  fixing  rates  of 
duty  to  be  imposed  on  foreign  goods  entering  the  United  States 
was  a  violation  of  Section  7  of  Article  I  of  the  Constitution  of 

»  Dana's  "Wheaton,"  par.  543,  note  250. 
"Crandall,  "Treaties,"  etc.,  p.  135. 


INTERNATIONAL  TREATIES  253 

the  United  States  and  an  invasion  of  one  of  the  highest  pre- 
rogatives of  the  House  of  Representatives.' 

119.  The  Operation  of  Treaties. — As  a  rule,  with  a  very- 
few  exceptional  cases  in  history,  a  treaty  is  not  vaUd  or  in 
operation  until  an  exchange  of  ratifications  takes  place.  In 
those  cases  the  operation  and  consequent  acts  may  be  consid- 
ered as  tentative  previous  to  ratification.  The  treaty,  however, 
dates,  unless  otherwise  provided,  from  its  signing. 

"In  the  case  of  the  cession  of  territory  the  exercise  of  sov- 
ereignty by  a  ceding  state  ceases,  except  for  strictly  municipal 
purposes,  with  the  signing.  The  national  character  of  the  ac- 
quiring state  is  not,  however,  imposed  for  commercial  pur- 
poses until  the  exchange  of  ratifications. "^ 

An  instance  of  such  a  cession  is  the  case  of  Porto  Rico,  which 
was  ceded  to  the  United  States  by  a  treaty  signed  December 
10,  1898,  the  authority  of  Spain  being  superseded  by  the 
previous  military  occupation  by  the  United  States.  Still 
Porto  Rico  and  the  United  States  were,  as  to  commercial  pur- 
poses, foreign  countries  until  the  exchange  of  ratifications."  ^ 

In  a  treaty  of  peace  hostilities  cease  from  the  date  of  its  sig- 
nature without  waiting  for  ratifications.  Captures  and  re- 
captures, made  thereafter  even  in  ignorance  of  the  signing  of 
the  treaty,  are  to  be  restored,  and  damages  where  possible  to 
be  compensated.  In  modern  international  wars  the  practice 
has  been  to  precede  the  treaty  of  peace  by  armistice  or  pre- 
liminary agreement.* 

Various  conditions,  however,  have  been  made  as  to  the 
closing  of  hostilities  which  may  be  mentioned  here.  "In  the 
treaty  between  Spain  and  the  Low  Countries,  signed  at  Miin- 
ster,  January  30,  1G48,  a  period  of  a  year  was  allowed  for  the 
receipt  of  the  news  of  peace  in  the  possessions  of  the  East 
India  Company,  and  a  period  of  six  months  in  those  of  the 

*  House  Journal,  46th  Congress,  2d  Session,  p.  323. 
»Crandall,  "Making  of  Treaties,"  etc.,  p.  214. 
»  Dooley  v.  U.  S.,  182  U.  S.  223. 
*Crandall,  "Treaties,"  etc.,  p.  215. 


254  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

West  India  Company.  Hostilities  were,  however,  to  cease  in 
these  places  if  advice  of  peace  was  received  eariier.^  With  the 
modern  facihties  of  communication  a  much  shorter  period  is 
required.  In  the  armistice  signed  January  28,  1871,  between 
France  and  Germany,  provision  was  made  for  the  cessation 
of  miUtary  operations  on  the  day  of  signing  in  Paris  and  within 
three  days  in  the  departments.^  Provision  was  also  inserted 
for  the  restitution  of  captures.  In  the  treaty  of  peace  between 
China  and  Japan,  signed  April  17,  1895,  it  was  agreed  that 
offensive  military  operations  should  cease  upon  the  exchange 
of  ratifications,  which  did  not  take  place  till  May  8.'  The 
protocol  between  the  United  States  and  Spain,  of  August  12, 
1898,  provided  that  hostilities  should  cease  upon  the  signing 
of  the  protocol  and  that  notice  to  that  effect  should  be  given 
as  soon  as  possible  by  each  government  to  the  commanders 
of  its  forces.  Between  the  signing  of  the  protocol  and  the  re- 
ceipt of  the  notice  occurred  the  capitulation,  on  August  14,  of 
Manila  to  the  American  forces.  Article  III  of  the  protocol 
provided  that,  pending  the  conclusion  of  a  treaty  of  peace, 
the  United  States  should  occupy  and  hold  Manila,  together 
with  the  bay  and  harbor.  The  Spanish  Government  sought 
to  maintain  that  the  United  States  continued  the  occupation 
solely  by  virtue  of  this  article,  and  that  the  capitulation  of 
August  14  was  'absolutely  null  by  reason  of  its  having  been 
concluded  after  the  belligerents  had  signed  an  agreement  de- 
claring the  hostilities  to  be  suspended.'  The  government  of 
the  United  States  was  unable  to  concur  in  this  view  and  took 
the  ground  that,  as  it  had  been  expressly  provided  in  the  pro- 
tocol that  notice  should  be  given  of  the  suspension  of  hostili- 
ties, the  suspension  was  to  be  considered  as  having  taken  ef- 
fect 'at  the  date  of  the  receipt  of  the  notice,'  which  had  been 
immediately  given.*    While  this  seems  to  be  a  natural  con- 

1  Art.  VII,  "Collection  of  Treaties,"  vol.  II,  p.  340. 

« Art.  I,  "British  and  Foreign  State  Papers,"  vol.  LXII,  p.  49. 

» Art.  X,  "British  and  Foreign  State  Papers,"  vol.  LXXXVII,  p.  803. 

*  "Foreign  Relations,"  1898,  pp.  813,  814,  830. 


INTERNATIONAL  TREATIES  255 

struction  of  the  article — otherwise  the  clause  providing  for  the 
immediate  notification  is  redundant — the  Spanish  Government 
was  not  inclined  to  accept  it  and  in  the  first  conference  of  the 
peace  commission  at  Paris,  requested  the  immediate  restora- 
tion of  the  status  quo  at  the  time  of  the  signing  of  the  pro- 
tocol. To  this  request  the  American  commissioners,  who  had 
been  specifically  instructed  that  the  city  and  suburbs  of 
Manila  were  held  'by  conquest  as  well  as  by  virtue  of  the  pro- 
tocol,' refused  to  yield."  ^ 

Where  the  treaty  fixes  a  future  date  for  the  cessation  of 
hostilities  in  remote  places,  it  is  generally  agreed  that  hostilities 
must  cease  upon  the  receipt  of  official  notice,  although  the  time 
allowed  has  not  expired.^  Obviously  the  notification,  in  order 
to  be  binding  on  the  officer,  must  be  duly  authenticated  and 
attested  to  by  his  own  government.' 

TOPICS  AND  REFERENCES 

1.  Definition  of  Treaties — Early  Existence  of  Treaties — 

Hershey's  "Essentials,"  31,  311.  Phillimore's  "International  Law," 
3d  ed.,  vol.  II,  67.  Montague  Bernard's  "Lectures  on  Di- 
plomacy," 164-6. 

2.  Subjects  and  Classification  of  Treaties — 

Phillimore,  "International  Law,"  3d  ed.,  vol.  II,  70-72.  Hershey's 
"Essentials,"  311-312.  Westlake's  "International  Law,"  2d  ed., 
vol.  I,  290-1. 

3.  Parties  to  Treaties — 

Butler's  "Treaty  Making  Power  in  the  United  States."  Foster's 
"American  Diplomacy,"  chap.  XII.  Phillimore,  "International 
Law,"  3d  ed.,  vol.  II,  74-77. 

4.  Validity  of  Treaties — 

Hershey's  "Essentials,"  312-314.  Moore's  "Digest,"  vol.  V,  156- 
175.     Lawrence's  "Principles,"  4th  ed.,  326-330. 

»Sen.  Doc.  148,  p.  6,  56th  Cong.,  2d  sess.;  Sen.  Doc.  62,  pp.  13,  15. 
'  Wheaton,  sec.  548;  Halleck,  vol.  I,  p.  319. 

>  See  "Case  of  tho  Swineherd,"  Hall,  p.  582.     Crandall,  "Treaties,  Their 
Making,"  etc.,  pp.  215-227. 


256     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

6.  Form  and  Ratification  of  Treaties — 

Hall,  6th  ed.,  321-6.  Foster's  "American  Diplomacy,"  chap. 
XIII.     Moore's  "Digest,"  vol.  V,  184-210. 

6.  Enforcement  of  Treaties — 

Crandall,  "Treaties,  Their  Making  and  Enforcement."  Bernard's 
"Lectures  on  Diplomacy,"  lect.  IV.  Moore's  "Digest,"  vol. 
V,  221-244. 

7.  Operation  of  Treaties — 

Crandall's  "Treaties,"  etc.,  213-217.  Hall,  6th  ed.,  343-351.  Op- 
penheim,  2d  ed.,  vol.  I,  561-5. 


CHAPTER  XIV 

INTERPRETATION  OF  TREATIES.    TERMINATION  OP 

TREATIES 

120.  Interpretation  of  Treaties. — As  to  the  interpretation 
of  a  treaty  it  can  be  said  that  in  a  general  way  the  most  im- 
portant matter  is  to  ascertain  the  real  intention  of  the  parties 
concerned  at  the  time  of  the  making  of  the  treaty.  This  should 
be  construed  equitably  and  not  too  technically. 

Phillimore  says:  "  The  imperfection  of  language  as  an  instru- 
ment of  expressing  intention  must  occasionally,  if  there  were 
no  other  reasons,  render  interpretation  necessary. 

"But  in  truth,"  he  goes  on  to  say,  "there  are  other  reasons; 
in  all  laws  and  in  all  conventions  the  language  of  the  rule  must 
be  general  and  the  application  of  it  particular.  Moreover, 
cases  arise  which  have,  perhaps,  not  been  foreseen  which  may 
fall  under  the  principle  but  which  are  not  provided  for  by  the 
letter  of  the  law  or  contract.  Circumstances  may  give  rise 
to  real  or  apparent  contradictions  in  the  different  dispositions 
of  the  same  instrument  or  of  another  instrument  which  may 
require  to  be  reconciled.  These  are  diflficulties  which  may  arise 
between  contracting  parties  disposed  to  act  honestly  toward 
each  other.  But  they  may  not  be  so  disposed;  one  of  them  may 
endeavor  to  avoid  his  share  of  the  mutual  obligation.  .  .  . 

"The  interpretation  Is  the  life  of  the  dead  letter,  but  what  is 
meant  by  the  term  'interpretation'?  The  meaning  which  any 
party  may  choose  to  affix? — or  a  meaning  governed  by  settled 
rules  and  fixed  principles,  originally  deduced  from  right  reason 
and  rational  equity  and  subsequently  formed  into  laws? 
Clearly  the  latter."^ 

»  Phillimore,  3d  ed.,  vol.  II,  p.  95. 
257 


258     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

As  a  further  answer  to  the  query  of  Sir  Robert  Phillimore 
the  following  general  rules  can  be  accepted  as  largely  covering 
the  matter  of  the  interpretation  of  international  treaties. 
They  are  gathered  mainly  from  Oppenheim  with  modifications 
and  additions.^ 

1.  All  treaties  should  be  interpreted  according  to  their 
reasonable  and  customary  reading  rather  than  from  a  strictly 
literal  sense.  The  interpretation  should  be  derived  from  a  due 
consideration  of  the  language  of  the  whole  instrument  rather 
than  from  particular  portions  or  sentences. 

2.  Terms  used  in  a  treaty  should  be  interpreted  according  to 
the  meaning  they  had  at  the  time  in  common  parlance  unless  a 
certain  technical  or  exceptional  meaning  is  required.  {All 
nations,  for  instance,  does  not  mean  some  nations.) 

3.  If  the  meaning  of  a  stipulation  is  ambiguous,  the  reason- 
able meaning  is  to  be  preferred  to  the  unreasonable,  the  more 
reasonable  to  the  less  reasonable,  the  adequate  to  the  inade- 
quate, the  consistent  to  the  inconsistent.  Previous  treaty 
obligations  toward  other  states  must  be  considered  as  well 
as  the  generally  recognized  principles  of  international  law. 

4.  If  the  meaning  of  a  stipulation  is  ambiguous,  the  less 
drastic  interpretation  is  to  be  preferred  to  be  applied  to  the 
party  under  obligation  or  whose  territorial  or  other  supremacy, 
would  be  affected  or  restricted. 

5.  The  wording  of  previous  treaties  between  the  same  parties 
or  between  one  of  the  parties  and  a  third  party  can  be  referred 
to  for  the  principle  involved  or  for  clearing  up  the  meaning  of 
a  phrase  or  a  stipulation. 

6.  If  there  is  existing  a  discrepancy  between  the  clear  mean- 
ing of  a  stipulation,  on  the  one  hand,  and  the  intentions  of  one 
of  the  parties  duly  stated  during  the  negotiations  preceding 
the  signing  of  the  treaty,  the  decision  must  depend  upon  the 
merits  of  the  particular  case,  and  the  interpretation  must  be 
in  accordance  with  the  real  intentions  of  the  contracting  parties. 

*  Oppenheim,  2d  ed.,  vol.  I,  pp.  583-6. 


INTERPRETATION  OF  TREATIES  259 

7.  In  case  of  a  doubt  as  to  the  general  or  special  meaning  of 
a  stipulation  and  a  different  reading  shown  from  the  intentions 
of  all  the  parties  unanimously  declared  during  the  negotiations 
preceding  the  signing  of  the  treaty,  the  meaning  corresponding 
to  the  real  and  declared  intentions  of  the  signatory  parties 
must  prevail  over  the  other  meaning  given  to  the  text. 

If,  therefore — as  in  the  case  of  the  London  naval  conference 
of  1908-9 — the  letter  of  the  draughting  committee  contains  cer- 
tain commentaries  and  interpretations  which  were  unanimously 
agreed  to  by  all  of  the  negotiators  previous  to  the  signing  of 
the  declaration,  these  interpretations  should  prevail. 

8.  If  two  meanings  of  a  stipulation  are  possible  according  to 
the  text  of  a  treaty,  the  meaning  to  prevail  is  the  one  which 
the  party  proposing  the  stipulation  knew  at  the  time  was  the 
meaning  desired  by  the  party  accepting  it. 

9.  If  it  should  be  a  matter  of  common  knowledge  that  a 
state  insists  upon  a  meaning  of  a  phrase  which  is  different  from 
the  usually  accepted  meaning  of  the  term  and  a  second  state 
enters  into  a  treaty  where  such  phrase  or  term  is  used,  the 
meaning  upheld  by  the  first  state  prevails. 

10.  If  a  meaning  of  a  stipulation  to  a  treaty  is  ambiguous 
and  one  of  the  parties  to  the  treaty  makes  known  its  interpreta- 
tion before  confirmation,  or  as  a  reservation  or  condition  to 
confirmation,  or  before  a  case  under  this  stipulation  occurs, 
then  the  other  parties  cannot  insist  upon  a  different  meaning. 
This  was  the  case  with  Article  23  of  the  first  Hague  convention 
in  regard  to  the  laws  and  usages  of  war  on  land,  and  also  as 
to  the  expression  ennemi  and  commergant  in  the  declaration  of 
London  understood  by  England  and  others  and  made  known 
by  Italy  in  the  Italo-Turkish  War. 

11.  An  interpretation  that  would  make  a  stipulation  of  a 
treaty  meaningless  is  not  admissible. 

12.  All  treaties  should  be  interpreted  so  as  to  exclude  fraud 
and  to  make  their  rules  consistent  with  good  faith. 

13.  The  rules  commonly  applied  by  national  courts  are  in 


260  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

so  far  only  applicable  to  the  interpretation  and  construction 
of  treaties  and  especially  law  making  treaties  as  they  agree 
with  general  rules  of  jurisprudence. 

14.  A  prohibition  which  is  more  or  less  specific  takes  pre- 
cedence and  modifies  a  general  permission. 

15.  If  a  penalty  for  non-observance  is  attached  to  one  or 
two  prohibitory  stipulations,  preference  is  given  to  that  which 
is  better  guarded. 

16.  The  later  date  of  two  or  more  conflicting  treaties  governs, 
even  if  made  by  different  parties. 

Article  38  of  The  Hague  convention  of  1907  for  the  pacific 
settlement  of  international  disputes,  of  which  the  United  States 
is  a  party,  says:  "In  questions  of  a  legal  nature,  and  especially 
in  the  interpretation  or  application  of  international  conventions, 
arbitration  is  recognized  by  the  contracting  powers  as  the  most 
effective  and,  at  the  same  time,  the  most  equitable  means  of 
settling  disputes  which  diplomacy  has  failed  to  settle.  Con- 
sequently, it  would  be  desirable  that,  in  disputes  regarding  the 
above-mentioned  questions,  the  contracting  powers  should,  if 
the  case  arise,  have  recourse  to  arbitration,  in  so  far  as  cir- 
cumstances permit."  ^ 

121.  The  Most-Favored-Nation  Clause. — Westlake  in  dis- 
cussing the  question  of  the  interpretation  of  treaties  brings  in 
the  question  of  what  is  known  as  the  most-favored-nation 
clause,  one  in  which  the  United  States  has  taken  a  stand  differ- 
ent from  many  other  countries.  "  It  seems  best  in  the  interest 
of  peace  that  when  an  agreement,"  he  says,  "on  broad  lines 
has  been  reached,  that  it  should  be  expressed  in  language  not 
striving  to  hide  a  felt  doubt  but,  on  the  other  hand,  not  mali- 
ciously seeking  occasions  for  doubt;  and  to  such  a  style  of 
draughting,  which  we  believe  to  be  most  common  in  treaties, 
a  large  and  liberal  spirit  of  interpretation  will  reasonably  cor- 
respond. Perhaps  no  better  instance  can  be  given  of  the  dif- 
ference between  the  two  modes  of  interpretation  which  we 
*  Higgins,  "The  Hague  Peace  Conferences,"  p.  123. 


INTERPRETATION  OF  TREATIES  261 

have  in  mind  than  this.  State  A  has  concluded  with  State  B 
a  treaty  on  tariffs  containing  what  is  known  as  the  most- 
favored-nation  clause  promising  to  B  the  benefit  of  lower 
duties  than  conceded  to  any  other  state.  A  then  concludes  with 
State  C  a  treaty  which,  for  some  valuable  consideration,  con- 
cedes to  it  lower  duties  on  certain  articles  than  are  provided 
in  the  treaty  with  B.  Can  B  demand  the  admission  of  its 
goods  at  the  same  rates  of  duty  as  those  of  C?  On  a  literal 
system  of  interpretation  it  can,  but  on  a  broader  system  it 
cannot,  unless  the  case  admits  of  its  giving  to  A  the  same  con- 
sideration that  is  given  by  C  and  it  is  willing  to  do  so.  The 
latter  answer  has  been  made  by  the  Supreme  Court  of  the 
United  States  and  in  our  opinion  justly."^  The  case  referred 
to  is  that  of  \Vhitney  v.  Robertson.  This  was  a  suit  to  allow 
San  Domingo  sugar  to  come  in  under  the  same  conditions  as 
Hawaiian  sugar,  which  was  then  admitted  free  of  duty  in  ac- 
cordance with  a  reciprocity  treaty  drawn  up  between  the 
United  States  and  the  Kingdom  of  Hawaii,  the  treaty  being 
made  effective  by  congressional  act. 

The  9th  Article  of  the  treaty  between  the  Dominican  Republic 
and  the  United  States  reads  that  "no  higher  or  other  duty 
shall  be  imposed  on  an  importation  into  the  United  States  of 
any  article  the  growth,  produce,  or  manufacture  of  the  Domin- 
ican Republic  or  of  her  fisheries;  and  no  higher  or  other  duty 
shall  be  imposed  on  the  importation  into  the  Dominican 
Republic  of  any  article  of  growth,  produce  or  manufacture  of 
the  United  States  or  its  fisheries  than  are  or  shall  be  payable 
on  the  like  articles  the  growth,  produce,  or  manufacture  of 
any  other  foreign  country  or  its  fisheries." 

Justice  Field,  who  delivered  the  opinion,  said,  with  respect  to 
this  clause,  "that  it  is  a  pledge  of  the  contracting  parties  that 
there  shall  be  no  discriminating  legislation  against  the  importa- 
tion of  articles  that  are  the  growth,  product,  or  manufacture  of 
their  respective  countries  in  favor  of  articles  of  like  character 
» Westlake,  "Int.  Law,"  2d  ed.,  vol.  I,  pp.  293-4. 


262     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

imported  from  any  other  country.  It  has  no  great  extent.  It 
was  never  designed  to  prevent  special  concessions,  upon  sufficient 
consideration,  touching  the  importations  of  certain  articles  into 
the  country  of  the  other.  It  would  require  the  clearest  language 
to  justify  a  conclusion  that  our  government  intended  to  pre- 
clude itself  from  such  engagements  with  other  countries  which 
might  in  the  future  be  of  the  highest  importance  to  its  interests."^ 

Our  interpretation  of  the  most-favored-nation  clause,  es- 
pecially as  it  is  applied  to  Canadian  reciprocity,  Hawaiian  reci- 
procity, and  the  sugar-bounty-paying  countries  of  Europe,  has 
led  to  much  discussion  especially  with  Germany,  Great  Britain, 
and  Russia. 

With  Germany  the  question  arose  also  as  to  salt,  which  was 
admitted  free  to  nations  who  admitted  our  salt  free — Germany 
placed  a  duty  on  our  salt  but  claimed  under  the  favored-nation 
clause  that  her  salt  should  be  admitted  free  to  our  country. 
Attorney-General  Olney  said  of  this  that,  "the  form  which 
the  provisions  of  our  recent  tariff  act  relating  to  salt  may  have 
assumed  is  quite  immaterial.  It  enacts,  in  substance  and 
effect,  that  any  country  admitting  American  salt  free  shall 
have  its  own  salt  admitted  here  free,  while  any  country  putting 
a  duty  upon  American  salt  shall  have  its  salt  dutiable  here 
under  the  pre-existing  statute.  In  other  words,  the  United 
States  concedes  'free  salt'  to  any  nation  that  concedes  'free 
salt'  to  the  United  States.  Germany,  of  course,  is  entitled  to 
that  concession  upon  returning  the  same  equivalent.  But 
otherwise  she  is  not  so  entitled,  and  there  is  nothing  in  the 
most-favored-nation  clause  which  compels  the  United  States 
to  discriminate  against  other  nations  and  in  favor  of  Germany 
by  granting  gratuitously  to  the  latter  privileges  which  it  grants 
to  the  former  only  upon  the  payment  of  a  stipulated  price." ^ 

Of  course,  in  tariff  matters  this  bears  against  governments 
which  have  light  tariffs  or  free  trade,  but  the  principle  with  us 
extends  to  other  concessions  besides  those  of  tariffs  and  duties 

»  Scott's  "Cases,"  p.  42.  »  Wharton's  "Int.  Law,"  vol.  II,  p.  58. 


INTERPRETATION  OF  TREATIES  263 

and  dates  back  to  the  early  days  of  the  republic  with  respect 
to  tonnage  and  harbor  duties. 

122.  Termination  of  Treaties. — A  treaty  may  be  modified 
or  terminated  by  the  following  conditions: 

1.  When  the  parties  mutually  consent. 

2.  When  continuance  is  conditioned  upon  terms  which  no 
longer  exist. 

3.  When  either  party  refuses  to  perform  a  material  stipula- 
tion. 

4.  When  all  the  material  stipulations  have  been  performed. 

5.  When  a  party  having  the  option  elects  to  withdraw. 

6.  When  performance  becomes  physically  or  morally  im- 
possible. 

7.  When  a  state  of  things  which  was  the  basis  of  the  treaty 
and  one  of  its  vital  conditions  no  longer  exists. 

In  addition  there  are  other  causes  for  the  abrogation  or  ter- 
mination of  a  treaty  which  will  be  given  specifically.  "  When, 
for  instance,  a  state  loses  entirely  its  identity  by  incorpora- 
tion into  another  its  obligation  to  execute  pre-existing  treaties 
ceases.    This  results  from  the  impossibility  of  performance. 

The  annexation  of  the  Hawaiian  Islands  by  the  United  States 
is  a  case  in  point.  .  .  .^  When  one  state  unites  or  confederates 
with  another  but  still  retains  to  a  limited  degree  its  separate 
character,  the  continued  validity  of  treaties  is  less  easily  de- 
termined. If  the  confederated  state  retains  liberty  of  action 
with  respect  to  the  matter  touched  upon  by  the  treaty  its 
obligation  will  still  exist." ^  The  treaties  made  with  Prussia, 
before  the  formation  of  the  German  Empire,  by  the  United 
States  are  held  to  be  still  effective,  as  the  King  of  Prussia  is 
considered  to  still  retain  as  Emperor  the  power  to  carry  into 
effect  international  obligations  in  this  respect. 

"A  state  formed  by  separation  from  another,  whether  the 
identity  of  the  original  state  still  exists  or  is  completely  lost  by 

»  Crandall,  "Treaties,"  etc.,  pp.  233-4. 
>  Crandall,  "Treaties,"  etc.,  p.  236. 


264  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

disintegration,  succeeds  to  such  treaty  obligations  as  are  pe- 
culiarly local.  Of  this  character  was  the  boundary  agreement 
of  January  12,  1828,  between  the  United  States  and  Mexico, 
which, '  having  been  entered  into  at  a  time  when  Texas  formed 
a  part  of  the  United  Mexican  States, '  was  recognized  by  Texas 
after  its  separation  as  a  binding  compact.^  Stipulations  with 
respect  to  water-courses  and  the  navigation  of  rivers  are  here 
included.  Likewise  the  provisions  of  Article  XXXV  of  the 
treaty  of  1846  between  the  United  States  and  New  Granada, 
in  which  the  right  of  way  or  transit  across  the  Isthmus  of 
Panama  upon  any  modes  of  communication  then  existing,  or 
which  might  thereafter  be  constructed,  was  guaranteed  to  the 
government  and  citizens  of  the  United  States  together  with 
the  correlative  obligations  on  the  part  of  the  United  States, 
have  been  considered  as  forming  a  covenant  'that  runs  with 
the  land,  to  the  duties  and  benefits  of  which  the  new  state  of 
Panama  succeeded.'  The  doctrine  of  the  liability  of  the  seced- 
ing portion  to  treaty  obligations  of  the  parent  state  has,  in 
some  instances,  been  asserted  in  latitude  sufficient  to  include 
those  of  a  purely  national  character.  For  instance,  the  gov- 
ernment of  the  United  States,  soon  after  recognizing  Texas,  gave 
notice  that  it  considered  the  treaty  of  amity,  commerce,  and 
navigation  between  the  United  States  and  Mexico  of  April  5, 
1841,  as  mutually  binding  upon  the  United  States  and  Texas. 
The  obligation  was  subsequently  recognized  by  Texas. "^ 

The  annexation  or  absorption  of  Madagascar  was  held  by 
the  French  to  render  invalid  all  of  its  previous  treaties  with  the 
United  States,  but  made  Franco-American  treaties  applicable. 

123.  Effect  of  War  upon  Treaties. — As  to  the  effect  of 
war  upon  treaties,  it  may  be  said  with  certainty  that  those 
treaties  that  concern  war,  such  as  those  dealing  with  the  rules 
of  war  and  neutrality,  and  treaties  of  alliance  and  subsidy  come 
into  full  vigor  and  force. 

»  "Treaties  and  Conventiona,"  p.  1079. 
» House  Doc,  12,  27th  Cong.,  2d  sess. 


INTERPRETATION  OF  TREATIES  265 

Treaties  which  refer  to  conditions  of  peace  and  pacific  rela- 
tions, such  as  treaties  of  friendship,  are  necessarily  terminated 
as  impossible  in  a  state  of  war.  As  to  treaties  which  are 
not  incompatible  with  a  state  of  war  and  which  do  not  nec- 
essarily presume  a  state  of  peace,  modern  opinions  vary; 
many  hold  that  these  treaties  are  suspended  during  the  time 
of  war  but  become  valid  and  in  force  when  the  war  is  over. 

Calvo  holds  that  such  treaties  revive  at  the  termination  of 
the  war  and  the  establishment  of  peace,  unless  they  are  modi- 
fied by  the  treaty  of  peace  or  by  material  changes  resulting 
from  warfare.  A  war  resulting  in  cession  of  territory  would 
naturally  affect  boundary  and  similar  treaties.* 

On  the  other  hand,  Westlake  says  in  what  is  the  best  state- 
ment on  the  subject  that  "the  outbreak  of  war  removes  the 
controversy  out  of  which  it  arose  from  the  domain  of  law.  It 
will  be  settled  at  the  peace  on  such  terms  as  the  superiority  of 
force  decides,  and  if  it  turns  on  the  disputed  interpretation 
of  a  treaty  and  such  interpretation  is  not  declared  at  the  peace 
for  the  future  the  treaty  will  be  regarded  as  annulled.  There 
cannot  be  a  contract  unless  the  minds  of  the  parties  are  agreed, 
and  the  war  will  have  shown  that  their  minds  are  not  agreed 
on  the  treaty  in  question. 

"Further,  war  interposes  a  practical  obstacle  to  dealing  on 
the  footing  of  law  even  with  obligations  which  have  not  been 
in  dispute,  and  it  may  result  in  such  a  change  of  the  relative 
strength  of  the  parties  and  in  the  surrounding  circumstances 
that  the  parties,  or  at  least  the  stronger  of  them,  will  not  desire 
that  those  obligations  should  continue.  It  is,  therefore,"  he 
claims,  "the  general  rule  that  war  abrogates  the  treaties  exist- 
ing between  the  belligerents  and  that  their  revival,  if  desired, 
must  be  expressly  provided  for  in  the  treaty  of  peace. 

"To  this  rule,  however,  there  are  certain  exceptions.  First, 
all  conventional  obligations  as  to  what  is  to  be  done  in  a  state 
of  war  must  continue  in  force  or  they  would  have  no  operation 
»  Calvo,  4th  ed.,  vol.  V,  p.  381. 


266     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

at  all.  Such  is  the  Anglo-French  convention  providing  for  a 
continuance  of  the  postal  service  between  the  two  countries 
in  the  case  of  a  war  between  them,  and  such  is  the  St.  Peters- 
burg declaration  against  the  use  of  explosive  bullets,  and  all 
other  conventions  relating  to  the  laws  of  war.  Another  in- 
stance is  the  provision  in  very  numerous  treaties  for  the  treat- 
ment which  the  subjects  or  citizens  of  the  respective  parties 
and  their  property  are  to  receive  in  case  of  war  between  them. 
A  treaty  providing  for  the  neutralization  of  a  territory  in  war 
time  naturally  becomes  effective  in  war  time,  being  the  particu- 
lar period  for  which  the  treaty  is  made. 

"Secondly,  transitory  or  dispositive  treaties,  including  all 
those  which  are  intended  to  establish  a  permanent  condition 
of  things,  form  another  exception.  Not  only  treaties  of  ces- 
sion, boundary,  recognition  of  independence  or  of  a  dynasty, 
and  such  like  fall  under  this  head  but  also  those  stipulations 
which  confer  rights  intended  for  use  in  daily  life  and  having 
no  conceivable  connection  with  the  causes  of  war  or  peace. 
An  example  is  the  clause  in  the  treaty  of  1795  between  Great 
Britain  and  the  United  States  giving  to  their  respective  sub- 
jects and  citizens  the  right  to  hold  and  transmit  land  then  held 
by  them  in  the  other  country,  notwithstanding  their  or  their 
heirs  and  assigns  being  aliens.  The  treaty  of  1760  between 
France  and  Sardinia,  now  applying  to  Italy,  relative  to  the 
execution  in  either  country  of  judgments  rendered  by  the 
courts  of  law  of  the  other  country  and  the  conventions  of  12th 
June,  1902,  and  17th  July,  1905,  between  numerous  states.  .  .  . 
All  these  are  delimitations  of  rights  as  real  and  implying  per- 
manence as  plainly  as  delimitations  of  boundaries.  During  a 
war  the  rights  may  be  dormant  for  want  of  the  opportunity 
to  enforce  them,  just  as  boundaries  may  be  transgressed  by 
arms;  but  the  peace,  when  concluded,  is  a  peace  with  and  on 
behalf  of  each  belligerent  state  with  all  its  known  equipment 
of  territory  and  permanent  rights,  and  needs  no  expression  to 
that  effect. 


INTERPRETATION  OF  TREATIES  267 

"A  third  exception  is  that  of  treaties  establishing  arrange- 
ments to  which  third  powers  are  parties,  such  as  guarantees 
and  postal  and  other  unions.  These  cannot  be  abrogated  by 
the  war,  because  it  cannot  affect  the  rights  of  third  parties. 
There  may  during  the  war  be  practical  difficulties  in  the  way  of 
carrying  out  their  provisions,  but  at  least  a  belligerent  ought 
not  actively  to  violate  them  unless  they  are  of  a  non-political 
nature  and  his  necessity  is  great.  Guarantees  are  political,  and 
the  plea  that  he  is  at  war  with  another  party  to  them  will  not 
avail  a  power  which  actively  violates  them  to  the  detriment 
of  the  state  guaranteed.  But  although  treaties  making  po- 
litical arrangements  are  not  destroyed  by  the  mere  fact  of  a 
war  in  which  all  the  parties  to  them  are  not  engaged,  it  may 
happen  that  one  of  the  belligerents  is  so  weakened  by  the  war 
or  by  the  terms  of  peace  that  he  can  no  longer  fulfil  a  guarantee 
or  some  other  political  stipulation  to  which  he  has  agreed,  or 
that  to  do  so  would  be  a  greater  burden  than  in  his  reduced 
condition  he  can  be  expected  to  bear.  Then  he  will  be  freed, 
not  by  any  rule  of  law  but  by  the  force  of  circumstances  of 
which  those  with  whom  he  has  contracted  must  take  account. 

"Outside  the  exceptions  which  have  been  discussed,  treaties 
between  belligerents  do  not  survive  the  outbreak  of  the  war. 
At  the  peace  there  is  no  presumption  that  the  parties  will 
take  the  same  view  as  before  the  war  of  their  interests,  po- 
litical, commercial,  or  other.  It  is  for  them  to  define  on  what 
terms  they  intend  to  close  their  interlude  of  savage  life  and  to 
re-enter  the  domain  of  law.  Those  terms  are  at  their  disposal 
or  at  that  of  the  stronger,  and  if  the  price  exacted  for  peace  is 
heavy  it  ought  not  to  be  spoken  of  as  a  fine  or  penalty.  In- 
dignation at  what  was  regarded  as  an  unjust  pretension  or 
resentment  at  what  is  regarded  as  a  too  obstinate  resistance 
may  have  contributed  to  fix  it,  but  law  has  had  no  concern 
in  fixing  it.  It  is  the  last  act  of  the  lawless  period,  and  both 
opinion  and  practice  allow  the  victor  to  take  advantage  of 
that  period  by  insisting  on  terms  having  no  relation  to  the 


268  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

cause  or  occasion  of  the  war.  The  terms  may  be  just;  more 
often  the  consciousness  of  their  injustice  is  obscured  in  the 
victor's  mind  by  his  excited  feeUngs;  but  in  any  case  the  genius 
of  law  does  not  inhabit  a  temple  shared  by  the  god  of  battles 
and  only  returns  when  he  has  withdrawn  from  it."^ 

124.  Abrogation  or  Modification  of  Treaties. — Treaties  are 
abrogated  or  materially  modified  by  the  withdrawal  by  notice 
of  one  party  from  conditions  or  stipulations  of  a  treaty.  Some- 
thing can  be  said  as  to  such  action  on  both  sides,  more  especially 
when  circumstances  have  in  the  course  of  time  materially 
changed  the  conditions.  Although  the  obligations  of  a  treaty 
may  be  perpetual  as  to  time  limitation,  it  may  be  easily  recog- 
nized that  changes  of  attendant  circumstances  may  make  a 
change  or  relaxation  almost  imperative. 

T.  J.  Lawrence  sagely  remarks  upon  this  subject  that  it  is 
clear  that  perpetual  treaties  cannot  remain  unchanged  forever. 
He  goes  on  to  say  that  "no  one  now  proposes  to  go  back  to 
the  treaties  of  Miinster  or  of  Utrecht,  and  few  would  consider 
it  desirable  to  return  to  the  stipulations  enacted  at  Vienna 
after  the  downfall  of  the  last  Napoleon.  As  circumstances 
alter,  the  engagements  made  to  suit  them  go  out  of  date.  When 
and  under  what  conditions  it  is  justifiable  to  disregard  a  treaty 
is  a  question  of  morality  rather  than  law.  Each  case  must  be 
judged  on  its  own  merits.  It  is  impossible  to  lay  down  a  hard 
and  fast  rule,  such  as  was  embodied  at  the  conference  held  at 
London  in  1871  to  settle  the  Black  Sea  question,  in  the  words: 
*  It  is  an  essential  principle  of  the  law  of  nations  that  no  power 
can  liberate  itself  from  the  engagements  of  a  treaty  or  modify 
the  stipulations  thereof  unless  with  the  consent  of  the  con- 
tracting powers  by  means  of  an  amicable  arrangement.'  This 
doctrine  sounds  well,  but  a  little  consideration  will  show  that 
it  is  as  untenable  as  the  lax  view  that  would  allow  any  party 
to  a  treaty  to  violate  it  on  the  slightest  pretext.  If  it  were  in- 
variably followed,  a  single  obstructive  power  would  have  the 
» Westlake,  "Int.  Law,"  vol.  II,  pp.  32-35. 


INTERPRETATION  OF  TREATIES  269 

right  to  prevent  beneficial  changes  that  all  the  other  states 
concerned  were  willing  to  adopt.  It  would  have  stopped  the 
unification  of  Italy  in  1860  on  account  of  the  protest  of  Austria, 
the  consolidation  of  Germany  in  1866  and  1871  because  of  the 
opposition  of  some  of  the  minor  states."^ 

A  recent  case  of  the  violation  of  the  obligations  of  a  treaty 
occurred  when  Austria-Hungary  notified  the  European  powers 
of  the  annexation  to  her  domain  of  the  provinces  of  Bosnia 
and  Herzegovina,  which  had  been  governed  by  her,  according 
to  the  terms  of  the  treaty  of  Berlin,  for  thirty  years.  Various 
provisions  of  this  treaty  had  been  violated,  and  by  means 
of  a  sudden  revolution  Turkey  had  become,  in  name  at  least, 
a  constitutional  state.  It  was  evident  from  these  changes 
that  the  order  of  things  at  the  time  of  the  making  of  the 
treaty  of  Berlin  no  longer  existed.  The  action  was  not  so 
blameworthy  as  the  methods.  The  state  of  the  affairs  at  the 
time  of  the  signing  of  the  Clayton-Bulwer  treaty  had  also 
materially  changed,  but  the  Hay-Pauncefote  treaty,  by  its 
negotiation  and  supersession,  met  this  fact  properly  and  honor- 
ably. Austria-Hungary,  however,  ignored  the  Berlin  treaty 
altogether  in  enlarging  her  position  with  respect  to  these  prov- 
inces by  the  change  from  administrative  to  sovereign  rights, 
and  thus,  in  a  way,  the  peace  of  Europe  was  threatened.  Fi- 
nally, she  was  obliged  to  ask  for  and  obtain  the  consent  of  the 
European  powers  separately  and  not  by  the  proper  means  of  a 
conference  or  a  new  treaty. 

TOPICS  AND  REFERENCES 

1.  Interpretation  of  Treaties — 

Phillimore,  3d  ed.,  vol.  II,  chap.  VIII,  94-126.  Crandall's  "Trea- 
ties," etc.,  217-230.     Oppenheim,  2d  ed.,  vol.  I,  582-7. 

2.  Most-Favored-Nation  Clause — 

Moore's  "Digest,"  vol.  V,  257-285.  Whitney  f.  Robertson,  1887, 
124  U.  S.  Reports,  190.  Hornbeck,  "The  Most  Favored  Nation 
Clause,"  in  3  A.  J.  I.  L.,  1910,  395,  etc. 

»  Lawrence's  "Principles,"  4th  ed.,  pp.  327-8. 


270     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

3.  Termination  of  Treaties — 

Butler,  "Treaty  Making  Power  of  the  United  States."     Crandall, 
"Treaties,"  etc.,  231-253.     Moore's  "Digest,"  vol.  V,  319-371. 

4.  Effect  of  War  upon  Treaties — 

Moore's   "Digest,"   vol.   V,   372-386.     Westlake,   "International 
Law,"  2d  ed.,  vol.  II,  32-35.    Hall,  6th  ed.,  378-383  and  552-8. 

5.  Abrogation  or  Modification  Without  Mutual  Consent — 

Moore's  "Digest,"  vol.  V,  356-363.     Oppenheim,  2d  ed.,  vol.  I, 
570-580.    Lawrence's  "Principles,"  4th  ed.,  326-331. 


CHAPTER  XV 

MEDIATION.    ARBITRATION.    ARBITRAL    TRIBUNALS  AND 

CONFERENCES 

125.  Mediation. — Higgins  in  his  valuable  work  on  The 
Hague  conferences  says  that  "there  is,  according  to  many 
writers  on  international  law,  a  theoretical  difference  between 
mediation  and  good  offices.  .  .  ."  It  is,  however,  conceded 
that  both  consist  in  a  friendly  interposition  of  a  third  power  to 
reconcile  differences  either  in  a  controversy  that  threatens  to 
lead  to  war  or  in  case  of  actual  hostilities. 

In  Convention  No.  I  of  the  two  Hague  conferences  for  the 
pacific  settlement  of  international  disputes,  the  articles  con- 
tained therein  numbered  from  No.  2  to  No.  8,  inclusive,  cover 
the  ground  of  mediation  under  the  head  of  good  offices  and 
mediation.^ 

This  entire  convention  was  ratified  by  the  Senate  of  the 
United  States  on  April  2, 1908,  with  the  reserve  and  declaration 
which  reads  as  follows:  "Nothing  contained  in  this  convention 
shall  be  so  construed  as  to  require  the  United  States  of  America 
to  depart  from  its  traditional  policy  of  not  intruding  upon, 
interfering  with,  or  entangling  itself  in  the  political  questions 
of  policy  or  internal  administration  of  any  foreign  state,  nor 
shall  anything  contained  in  the  said  convention  be  construed 
to  imply  a  relinquishment  by  the  United  States  of  its  tradi- 
tional attitude  toward  purely  American  questions. 

"Resolved  further,  as  a  part  of  this  act  of  ratification,  that 
the  United  States  approves  this  convention  with  the  under- 
standing that  recourse  to  the  permanent  court  for  the  settle- 
ment of  differences  can  be  had  only  by  agreement  thereto 

*  See  Appendix  II. 
271 


272  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

through  general  or  special  treaties  of  arbitration  heretofore  or 
hereafter  concluded  between  the  parties  in  dispute,  and  the 
United  States  now  exercises  the  option  contained  in  Article  53 
of  said  convention  to  exclude  formulation  of  the  'compromis ' 
by  the  permanent  court  and  hereby  excludes  from  the  com- 
petence of  the  permanent  court  the  power  to  frame  the  'com- 
promis'  required  by  general  or  special  treaties  of  arbitration 
concluded  or  hereafter  to  be  concluded  by  the  United  States, 
and  further  expressly  declares  that  the  'compromls'  required 
by  any  treaty  of  arbitration  to  which  the  United  States  may 
be  a  party  shall  be  settled  only  by  agreement  between  the 
contracting  parties,  unless  such  treaty  shall  expressly  provide 
otherwise." 

This  convention  covers  the  ground  of  both  mediation  and 
arbitration  and  gives  the  full  definition  of  a  compromis,  which 
is  the  preliminary  agreement  covering  the  nature  and  limits  of 
the  controversy  and  indicating  the  procedure  and  general  rules 
of  the  proceedings  of  the  negotiators  or  arbitral  body.  The 
articles  of  the  convention  as  to  mediation  are  as  follows: 

"Article  2.  In  case  of  serious  disagreement  or  dispute,  before 
an  appeal  to  arms,  the  contracting  powers  agree  to  have  re- 
course, as  far  as  circumstances  allow,  to  the  good  offices  or 
mediation  of  one  or  more  friendly  powers. 

"Article  3.  Independently  of  this  recourse,  the  contracting 
powers  deem  it  expedient  and  desirable  that  one  or  more 
powers,  strangers  to  the  dispute,  should,  on  their  own  initia- 
tive and  as  far  as  circumstances  may  allow,  offer  their  good 
offices  or  mediation  to  the  states  at  variance. 

"Powers  strangers  to  the  dispute  have  the  right  to  offer  good 
offices  or  mediation  even  during  the  course  of  hostilities. 

"The  exercise  of  this  right  can  never  be  regarded  by  either 
of  the  parties  in  dispute  as  an  unfriendly  act. 

"Article  4.  The  part  of  the  mediator  consists  in  reconciling 
the  opposing  claims  and  appeasing  the  feelings  of  resentment 
which  may  have  arisen  between  the  states  at  variance. 


ARBITRAL  TRIBUNALS  AND  CONFERENCES         273 

"Article  5.  The  functions  of  the  mediator  are  at  an  end  when 
once  it  is  declared,  either  by  one  of  the  parties  to  the  dispute 
or  by  the  mediator  himself,  that  the  means  of  reconciliation 
proposed  by  him  are  not  accepted. 

"Article  6.  Good  offices  and  mediation  undertaken  either 
at  the  request  of  the  parties  in  dispute  or  on  the  initiative  of 
powers  strangers  to  the  dispute  have  exclusively  the  character 
of  advice  and  never  have  binding  force. 

"Article  7.  The  acceptance  of  mediation  cannot,  unless  there 
be  an  agreement  to  the  contrar}^  have  the  effect  of  interrupt- 
ing, delaying,  or  hindering  mobilization  or  other  measures  of 
preparation  for  war. 

"If  it  takes  place  after  the  commencement  of  hostilities,  the 
military  operations  in  progress  are  not  interrupted  in  the  ab- 
sence of  an  agreement  to  the  contrary. 

"Article  8.  The  contracting  powers  are  agreed  in  recom- 
mending the  application,  when  circumstances  allow  of  special, 
mediation  in  the  following  form."^ 

The  parties  to  the  treaty  of  Paris  in  1856,  at  the  conclusion 
of  the  Crimean  War,  expressed  the  formal  desire  that  nations, 
"before  appealing  to  arms,  should  have  recourse,  as  far  as 
circumstances  may  allow,  to  the  good  offices  of  a  friendly 
power  and  stipulated  that,  before  the  employment  of  force 
again  in  similar  circumstances  to  that  which  existed  before 
the  Crimean  War,  an  opportunity  should  be  afforded  of  having 
recourse  by  the  mediation  of  other  powers.  Westlake  expresses 
the  belief  that  if  the  formal  desire  of  the  Paris  congress  had 
been  honestly  carried  out  the  Franco-German  War  of  1870 
would  not  have  occurred. 

He  goes  on  in  his  discussion  of  the  subject  to  observe  "that 
there  is  a  class  of  cases  in  which  mediation  might  usefully  be 
combined  with  arbitration — namely,  where  a  difference  which 
calls  for  the  application  of  legal  rules  can,  nevertheless,  not  be 
entirely  disposed  of  by  such  rules.     For  instance,  suppose  that 

'  See  Appendix  II. 


274  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

in  a  boundary  dispute  referred  to  arbitration  it  appeared  that 
there  was  some  territory  to  which  neither  party  could  estabHsh 
a  title  in  accordance  with  the  acknowledged  rules  of  interna- 
tional law.  It  would  be  desirable  that  the  arbitrator,  after 
awarding  to  each  party  all  that  it  could  lawfully  claim,  should 
possess  the  power  of  a  mediator  to  propose  a  division  of  what 
remained.  And  he  might  be  clothed  with  that  power  by  special 
agreement,  where  the  possibility  that  occasion  might  arise  for 
its  exercise  could  be  foreseen."^ 

The  value  of  good  oflBces  and  mediation  is  very  great.  It  is 
true  that  many  opportunities  have  not  been  utilized  which,  if 
availed  of,  would  have  prevented  hostilities;  but,  on  the  other 
hand,  war  has  been  prevented  by  such  mediation;  and  if,  as  it 
seems  probable,  a  period  for  negotiation  and  good  oflSces  will 
be  created  by  a  series  of  treaties,  the  possibility  of  the  pre- 
vention and  of  a  diminution  of  hostilities  will  be  greatly  in- 
creased. The  articles  of  The  Hague  convention  bearing  upon 
the  use  of  good  offices  and  mediation  and  which  give  a  legal 
right  to  nations  to  offer  these  friendly  offices  before  and  during 
hostilities  have  greatly  increased  the  value  of  mediation.  They 
were  effectively  used  by  France  to  effect  an  agreement  between 
Great  Britain  and  Russia  in  1904,  as  to  the  Dogger  Bank  affair, 
and  also  by  President  Roosevelt  to  cause  an  opening  of  nego- 
tiations which  led  to  the  treaty  of  peace  of  Portsmouth  between 
Russia  and  Japan,  on  September  5,  1905. 

126.  Arbitration. — "It  is  important,"  says  Mr.  John  Bas- 
sett  Moore,  "  from  the  practical  as  well  as  from  the  theoretical 
side  of  the  matter,  to  keep  in  view  the  distinction  between 
arbitration  and  mediation — a  distinction  either  not  under- 
stood or  else  lost  sight  of  by  many  of  those  who  have  under- 
taken to  discuss  the  one  subject  or  the  other.  Mediation  is 
an  advisory,  arbitration  a  judicial,  function.  Mediation 
recommends,  arbitration  decides.  And  while  it  doubtless 
may  be  true  that  nations  have,  for  this  reason,  on  various 
»  Westlake's  "Int.  Law,"  part  I,  p.  366. 


ARBITRAL  TRIBUNALS  AND  CONFERENCES         275 

occasions  accepted  mediation  when  they  were  unwiUing  or 
reluctant  to  arbitrate,  it  is  also  true  that  they  have  settled  by 
arbitration  questions  which  mediation  could  not  have  adjusted. 
It  is,  for  example,  hardly  conceivable  that  the  question  of  the 
Alabama  claims  could  have  been  settled  by  mediation.  The 
same  thing  may  be  said  of  many  boundary  disputes.  In  nu- 
merous cases  the  efforts  of  mediators  have  been  directed,  and 
successfully  directed,  to  bring  about  an  arbitration  as  the  only 
means  of  putting  an  end  to  controversy. 

"But  while  bearing  in  mind  the  distinctively  judicial  char- 
acter of  arbitration,  it  would  not  be  proper  to  minimize  the 
importance  of  mediation  as  one  of  the  forms  of  amicable  nego- 
tiation. The  congress  of  Paris  of  1856,  as  well  as  the  Congo 
conference  of  1884,  made  a  declaration  in  favor  of  systematic 
mediation."^  ^ 

Arbitration  for  the  settlement  of  international  difficulties  or 
for  the  prevention  of  hostilities  existed  in  the  earliest  times; 
with  the  Persians  it  was  used  and  imposed  upon  cities  which 
were  engaged  in  disputes,  and  so  far  as  the  Greeks  were  con- 
cerned they  repeatedly  attempted  to  prevent  war  in  this  wa}--, 
although  it  must  be  said  they  were  not  altogether  successful 
in  their  efforts.  In  fact,  the  Greeks  confined  their  efforts 
largely  to  themselves  and  not  with  foreign  nations.  Their  ar- 
bitrations, moreover,  did  not  cover  great  political  questions, 
as  every  Greek  city  carefully  preserved  its  independence,  but 
they  related  "to  disputes,"  says  a  French  writer,  "touching 
religion,  commerce,  boundaries,  and  the  possession  of  contested 
territories,  especially  of  the  numerous  islands  scattered  among 
the  Grecian  seas.  .  .  ."' 

"Under  the  influence  of  religious  and  feudal  ideas  arbitra- 
tions were  very  frequent  in  the  Middle  Ages,  which  affords  the 
remarkable  spectacle  of  conciliation  and  peace  making  their 

'  See  Calvo,  "Le  Droit  Int.,"  4th  ed.,  Ill,  413. 

'  Moore,  "International  Arbitration,"  vol.  V,  p.  5042. 

»  Moore,  "International  Arbitration,"  vol.  V,  p.  4822. 


276     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

way  amid  the  most  warlike  populations  that  have  ever  existed. 
They  were  especially  frequent  in  Italy,  where  in  the  thirteenth 
century  there  were  not  less  than  a  hundred  between  the  princes 
and  inhabitants  of  that  country.  But  when  the  papacy  had 
renounced  its  rule  over  civil  society  and  absolute  monarchies 
gradually  became  established  in  Europe  on  the  ruins  of  feudal- 
ism, arbitrations  became  more  rare.  They  diminished  during 
the  course  of  the  fourteenth  and  fifteenth  centuries,  and  it  is 
stated  that  from  the  end  of  the  sixteenth  century  till  the 
French  Revolution  they  had  almost  disappeared  from  inter- 
national usage."  ^ 

In  the  revival  of  the  use  of  arbitration  the  Jay  treaty  of 
1794  may  be  said  to  have  paved  the  way.  This  treaty  between 
the  United  States  and  Great  Britain  included  in  its  stipula- 
tions the  reference  of  several  questions  to  arbitration.  The 
same  nations  in  the  latter  half  of  the  nineteenth  century  gave 
a  great  impetus  to  arbitration  by  the  celebrated  and  success- 
ful settlement  of  the  Alabama  and  other  claims  by  the  Geneva 
arbitral  tribunal  of  1872.  There  have  been  two  hundred  and 
twenty-eight  instances  of  formal  arbitration  between  1794  and 
1901.  The  Hague  conferences  of  1899  and  1907  have  also 
been  particularly  stimulating  in  the  recourse  had  to  such 
methods  of  settling  international  disputes.  The  first  Hague 
conference  produced  the  convention  for  the  pacific  settlement 
of  international  disputes  already  referred  to  under  the  head  of 
mediation.  This  was  readopted  by  the  second  Hague  confer- 
ence with  slight  changes  (see  Appendix  II),  and  also  a  conven- 
tion relative  to  the  establishment  of  an  international  prize- 
court.  This  has  been  also  amended  by  agreement  of  the 
powers  at  the  request  of  the  United  States  and  will  be  found  in 
the  final  form  in  Appendix  III. 

The  second  Hague  conference  also  declared  itself  in  principle 
in  favor  of  obligatory  arbitration  and  stated  that  those  differ- 
ences relating  to  the  interpretation  of  international  conventional 
1  Moore,  "International  Arbitration,"  vol.  V,  p.  4829. 


\ 

ARBITRAL  TRIBUNALS  AND  CONFERENCES         277 

stipulations  are  susceptible  of  being  submitted  to  obligatory 
arbitration  without  any  reservation.  The  failure  of  this  con- 
ference to  agree  upon  a  definite  plan  of  obligatory  arbitration 
was  mainly  due  to  the  opposition  of  Germany  and  Austria. 

127.  International  Commissions  of  Inquiry. — In  the  con- 
vention for  the  pacific  settlement  of  international  disputes 
adopted  by  the  first  Hague  conference  there  were  six  articles 
devoted  to  the  subject  of  international  commissions  of  inquiry. 
These  articles  proved  their  value  by  the  formation  of  the  North 
Sea  commission  of  inquiry  of  1905,  which  was  originated  to 
deliberate  upon  the  Dogger  Bank  affair  in  the  North  Sea, 
an  occurrence  which  took  place  in  the  cruise  of  the  Russian 
Baltic  fleet  to  the  Far  Eastern  waters  during  the  Russo-Japanese 
War.    It  happened  as  follows: 

On  the  night  of  October  21,  1904,  a  portion  of  the  Rus- 
sian fleet  fired  on  the  fishing  fleet  from  Hull,  England,  which 
was  engaged  in  fishing  on  or  near  the  Dogger  Bank  in  the 
North  Sea,  apparently  mistaking  the  fishing  vessels  for  a 
squadron  of  torpedo-boats.  Two  men  were  killed,  several  were 
wounded,  one  of  the  craft  sunk  and  others  damaged.  The 
tension  at  the  time  resulting  between  Great  Britain  and  Russia 
was  very  great,  and  for  a  short  time  war  appeared  to  be 
inevitable.  The  Russian  Government  maintained  that  Japa- 
nese torpedo-boats  were  concealed  among  the  fishing  fleet  and 
that  the  firing  was  an  operation  of  war.  The  presence  of  the 
Japanese  torpedo-boats  was  denied  by  Great  Britain.  Russia 
expressed  her  readiness  to  make  proper  compensation  if  the 
facts  were  not  as  she  stated.  The  dispute  turned,  therefore, 
on  a  question  of  fact,  and  hence  finally  the  two  governments 
agreed  to  an  international  commission  of  inquiry  in  accor- 
dance with  the  articles  previously  referred  to  of  the  first  Hague 
conference.  The  commission  made  its  report,  which  was 
practically  accepted  by  Russia,  and  a  sum  of  £65,000  was  paid 
as  a  matter  of  indemnity. 

As  a  result  of  this  commission  of  inquiry  and  its  rules  of 


278  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

procedure  and  general  experience  The  Hague  conference  of 
1907  made  considerable  additions  and  changes  in  the  articles 
of  the  convention  referred  to,  which  now  number  twenty-eight 
on  the  subject  of  commissions  of  inquiry.  These  additions  and 
changes  are  a  decided  advance  upon  those  of  The  Hague  con- 
ference of  1899.  As  Higgins  well  says:  "If  Great  Britain  and 
Russia  had,  at  a  time  when  relations  between  them  were 
strained  almost  to  the  breaking  point,  been  enabled  to  terminate 
the  period  of  tension  in  a  friendly  manner,  it  was  thought  that 
other  states  might  on  future  occasions  do  the  same."^ 

The  United  States  has  in  its  diplomatic  history  created  at 
various  times  mixed  commissions  for  the  settlement  of  various 
international  claims  and  disputes.  These  commissions  are  par- 
ticularly useful  in  settling  questions  of  disputed  boundaries, 
and,  being  small  in  number,  they  can  do  such  work  effectively. 

A  mixed  commission  was  established  in  Europe  to  draw  up 
regulations  for  the  navigation  and  policing  of  the  Danube 
River.  It  was  in  due  time  succeeded  by  another  mixed  com- 
mission which  supervised  the  carrying  out  of  these  regulations. 
This  commission  has  executive  powers,  comes  to  a  decision  by 
a  majority  vote,  and  prescribes  and  enforces  penalties  for  the 
violation  of  the  river  regulations. 

These  mixed  commissions  consist  as  a  rule  of  representatives 
of  the  two  contesting  powers  and  a  neutral  element  with  the 
deciding  vote.  In  the  Alaska  boundary  tribunal  of  1903  the 
neutral  element  was  wanting,  the  tribunal  consisting  of  Ameri- 
can and  British  members,  the  British  members  being  composed 
of  Canadian  and  one  English  member,  the  chief  justice  of 
England,  who  was  president.  The  commission  consisted  of 
equal  numbers  on  each  side. 

128.    Obligatory  Arbitration. — The  final  act  of  the  second 

Hague  conference  of  1907  states  that  the  delegates  admitted 

the  general  principle  of  obligatory  arbitration  and  goes  on  to 

say  that  certain  disputes,  such  as  those  applying  to  the  inter- 

*  Higgins,  "Hague  Peace  Conferences,"  p.  170. 


ARBITRAL  TRIBUNALS  AND  CONFERENCES         279 

pretation  and  application  of  international  treaties,  may  be  sub- 
mitted to  obligatory  arbitration  without  restriction.  This  was 
adopted  by  the  conference  by  forty-one  votes,  the  United  States, 
Japan,  and  Rumania  not  voting. 

Attempts  were  made  to  draw  up  a  more  definite  convention, 
giving  a  certain  number  of  subjects  to  which  obligatory  arbi- 
tration would  apply,  but  without  success. 

In  the  second  convention  of  The  Hague  of  1907  which  treats 
of  the  limitation  of  the  employment  of  force  for  the  recovery 
of  contract  debts,  Article  1  reads  as  follows:  "The  contract- 
ing powers  agree  not  to  have  recourse  to  armed  force  for  the 
recovery  of  contract  debts  claimed  from  the  government  of 
one  country  by  the  government  of  another  country  as  being 
due  to  its  nationals.  This  undertaking  is,  however,  not  applica- 
ble when  the  debtor  state  refuses  or  neglects  to  reply  to  an 
offer  of  arbitration  or,  after  accepting  the  offer,  prevents  any 
compromise  from  being  agreed  on  or,  after  the  arbitration,  fails 
to  submit  to  the  award." 

The  United  States  Senate,  however,  in  ratifying  this  con- 
vention on  April  17,  1908,  stated  that  the  United  States  ap- 
proves this  convention  with  the  understanding  that  recourse 
to  the  permanent  court  for  the  settlement  of  the  differences  re- 
ferred to  in  said  convention  can  be  had  only  by  agreement 
thereto  through  general  or  special  treaties  of  arbitration  here- 
tofore or  hereafter  concluded. 

129.  The  Judicial  Settlement  of  International  Disputes. — 
There  has  been  existing  a  feeling  which  is,  to  a  great  extent, 
well  founded,  that  arbitration  bodies  are  apt  to  reach  com- 
promises rather  than  judicial  decisions  based  upon  international 
law  and  treaties.  This  has  caused  a  movement  in  favor  of 
more  definite  decisions  like  those  delivered  by  judges  rather 
than  those  arrived  at  by  tribunals  or  conferences  where  the 
findings  are  more  diplomatic  than  judicial.  In  fact,  the  Su- 
preme Court  of  the  United  States,  the  tribunal  of  appeal  for 
disputes  between  the  different  States  forming  the  Union,  has 


280     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

been  often  quoted  as  the  tribunal  which  might  serve  as  a  model 
for  cases  of  international  disputes. 

Perhaps  the  best  differentiation  of  the  two  methods  of  settle- 
ment of  international  disputes  can  be  found  in  Secretary  Root's 
instructions  to  the  American  delegation  to  the  second  Hague 
conference  of  1907.  It  reads  as  follows:  "It  has  been  a  very 
general  practice  for  arbitrators  to  act  not  as  judges  deciding 
questions  of  fact  and  law,  upon  the  record  before  them,  under 
a  sense  of  judicial  responsibility  but  as  negotiators  effecting 
settlement  of  the  questions  brought  before  them  in  accordance 
with  traditions  and  usages  and  subject  to  all  the  considera- 
tions and  influences  which  affect  diplomatic  agents.  The  two 
methods  are  radically  different,  proceed  upon  different  stand- 
ards of  honorable  obligation,  and  frequently  lead  to  widely 
differing  results.  It  very  frequently  happens  that  a  nation 
which  would  be  very  willing  to  submit  its  differences  to  an  im- 
partial judicial  determination  is  unwilling  to  subject  them  to 
this  kind  of  diplomatic  process.  If  there  could  be  a  tribunal 
which  would  pass  upon  questions  between  nations  with  the 
same  impartial  and  impersonal  judgment  that  the  Supreme 
Court  of  the  United  States  gives  to  questions  arising  between 
citizens  of  the  different  states,  or  between  foreign  citizens  and 
the  citizens  of  the  United  States,  there  can  be  no  doubt  that 
nations  would  be  more  ready  to  submit  their  controversies  to 
its  decision  than  they  are  now  to  take  the  chance  of  arbitration. 
It  should  be  your  effort  to  bring  about  in  the  second  conference 
a  development  of  The  Hague  tribunal  into  a  permanent  tri- 
bunal composed  of  judges  who  are  judicial  officers  and  nothing 
less,  who  are  paid  adequate  salaries,  who  have  no  other  occu- 
pation, and  who  will  devote  their  entire  time  to  the  trial  and 
decision  of  international  causes  by  judicial  methods  and  under 
a  sense  of  judicial  responsibility." 

As  a  matter  of  fact,  the  court  established  by  the  conference 
of  1899  lacks  continuity  and  coherence.  It  is,  in  reality,  a 
panel  of  judges  rather  than  a  court.    In  practice  it  has  also 


ARBITRAL  TRIBUNALS  AND  CONFERENCES         281 

been  slow  in  coming  into  being  and  in  its  subsequent  work- 
ings. 

As  a  result  of  this  condition  and  to  meet  the  defects  found, 
an  attempt  was  made,  mainly  by  the  American  delegates,  to 
remedy  matters  under  the  instructions  just  quoted.  The  re- 
sult adopted  by  the  second  Hague  conference  was  first  in  the 
form  of  a  declaration,  which  was  afterward  changed  in  title  to 
that  of  a  vceu  (or  wish).  It  left  out,  however,  the  provisions 
relating  to  the  nomination  of  the  judges  or  their  rotation  in 
ofiice.  In  this  form  it  remains  with  the  recommendation  that 
it  be  brought  into  force  as  soon  as  an  agreement  can  be  reached 
respecting  the  selection  of  the  judges  and  the  constitution. 
Although  it  was  adopted  in  this  form  finally  by  thirty-six  votes 
and  six  abstentions,  it  has  never  been  put  in  force. 

The  Department  of  State  has  secured  an  amendment  at  the 
international  prize  convention  of  the  second  Hague  conference, 
so  that  it  could  be  used  when  ratified  as  a  working  system 
for  an  arbitral  court,  but  so  far  this  has  not  been  utilized. 

Of  the  arbitral  court  and  its  difficulties  in  the  second  Hague 
conference  Mr.  Higgins  writes  as  follows :  "  The  labor  of  weeks 
spent  in  discussing  the  various  projects  for  the  composition  of 
the  proposed  court  of  arbitral  justice  was  frustrated  and 
rendered  fruitless  for  the  present  by  the  opposition  of  the  smaller 
powers,  headed  by  the  Brazilian  delegate,  M.  Ruy  Barbosa.  To 
them  the  doctrine  of  the  equality  of  states  was  a  dogma  accepted 
in  its  crudest  meaning.  Equality  before  the  law  and  equality 
in  influence  are  two  very  different  things.  The  '  primacy  of  the 
great  powers '  is  a  fact,  if  it  is  not  a  legal  principle,  and  if  these 
powers  should  be  able  in  the  future  to  agree  upon  a  method 
for  the  appointment  of  the  judges  for  the  court,  the  lesser 
powers  will,  in  course  of  time,  gradually  be  found  desirous  of 
taking  their  part  in  an  institution  which  would  contain  the 
germs  of  the  most  important  judicial  body  ever  known  to  the 
world.  But  are  these  powers  really  in  earnest  in  their  desire 
to  establish  such  an  institution?    The  international  Palais  de 


282     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

Justice  has  been  built,  furnished,  and  decorated  and  is  ready 
for  the  judges  to  take  their  seats;  it  is  for  the  powers  to  open 
the  doors  and  send  them  in."^ 

TOPICS  AND  REFERENCES 

1.  Mediation — 

Moore,  "History  of  International  Arbitration,"  vol.  V,  5042-6. 
Oppenheim,  2d  ed.,  vol.  II,  "International  Law,"  pars.  10-15. 
"La  Mediation,"  etc.,  1900.    Melik. 

2.  Arbitration — 

Moore,  "History  and  Digest  of  International  Arbitrations  to  Which 
the  United  States  Has  Been  a  Party,"  in  6  vols.,  1898.  Lake 
Mohonk  Conference  Reports  on  International  Arbitration  since 
1895.  List  of  References  on  International  Arbitration,  published 
by  the  Library  of  Congress,  1908.  "For  the  Arbitration  and  the 
Hague  Court,"  1904. 

3.  International  Commissions  of  Inquiry — 

Hershey,  "International  Law  and  Diplomacy  of  the  Russo-Japanese 
War,"  1906,  chap.  VIII.  Oppenheim,  2d  ed.,  vol.  II,  7,  15. 
Higgins,  "The  Peace  Conferences,"  107,  167,  170. 

4.  Obligatory  Arbitration — 

Oppenheim,  2d  ed.,  vol.  II,  25-26.  Hershey'a  "Essentials,"  32&- 
332.    Scott,  vol.  I,  "Hague  Peace  Conferences,"  chap.  VII. 

5.  The  Judicial  Settlement  of  International  Disputes — 

Hershey's  "Essentials,"  321.  Westlake,  "International  Law,"  2d 
ed.,  vol.  I,  363-5.  Nys,  "Le  Droit  International,"  vol.  II,  chap. 
V.  Proceedings  of  Society  for  Judicial  Settlement  of  Inter- 
national Disputes. 

>  Higgins,  "Hague  Peace  Conference,"  p.  517. 


CHAPTER  XVI 
MEASURES  OF  CONSTRAINT  SHORT  OF  WAR 

There  are  several  methods  that  are  of  a  non-amicable  nature 
by  which  pressure  more  or  less  forcible  is  brought  to  bring 
about  a  solution  of  international  difficulties  without  actually 
causing  formal  war.  The  advantage  of  these  measures  over 
actual  war  is  that  not  only  do  they  avoid  the  actual  fighting 
with  its  bloodshed  but  also  the  complications,  commercial  and 
otherwise,  that  arise  in  the  intercourse  and  relations  with  neu- 
trals in  formal  and  declared  warfare. 

These  measures  are  the  suspension  of  diplomatic  relations, 
retorsions,  reprisals,  embargo,  and  pacific  blockade. 

130.  The  Suspension  of  Diplomatic  Relations. — ^The  sus- 
pension of  diplomatic  relations  by  the  withdrawal  of  the  diplo- 
matic agents  is  a  marked  manifestation  of  disapprobation  of 
the  action  and  policy  of  one  government  toward  another.  Mr. 
Hannis  Taylor  says,  with  respect  to  this  method  of  redress,  that 
"as  permanent  ministers  and  ambassadors  are  maintained  as 
the  best  mediums  through  which  views  may  be  exchanged  and 
business  amicably  adjusted  between  nations,  a  refusal  to  settle 
just  claims  within  a  reasonable  time  may  become  a  sufficient 
cause  for  the  withdrawal  of  a  diplomatic  agent  from  the  offend- 
ing capital.  Under  such  circumstances  the  representative 
may  retire,  leaving  the  business  of  his  embassy  or  legation  in 
the  hands  of  a  charge  d'affaires;  or  the  mission  may  be  entirely 
closed,  and  the  envoy  of  some  friendly  power  requested  to  look 
after  the  interests  of  citizens.  Thus,  in  1827,  the  American 
charge  at  Rio  de  Janeiro,  when  'his  representations  in  behalf 
of  the  rights  and  interests  of  his  countrymen  were  disregarded 

283 


284     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

and  useless,  deemed  it  his  duty,  without  waiting  for  instruc- 
tions to  terminate  his  official  functions,  to  demand  his  pass- 
ports and  return  to  the  United  States.'  Not  until  the  Brazil- 
ian Government  promised  'that  indemnity  should  be  promptly 
made  for  all  injuries  inflicted  on  citizens  of  the  United  States 
or  their  property  contrary  to  the  laws  of  nations'  did  President 
Adams  authorize  the  renewal  of  diplomatic  intercourse.  In 
1834,  when  France  failed  to  pay  the  indemnity  due  under  the 
spoliation  treaty,  like  pressure  was  applied;  and  when  in  1858 
a  tax  was  imposed  by  Mexico  which  unduly  discriminated 
against  citizens  of  the  United  States,  it  was  deemed  such  an 
unfriendly  act  that  the  American  minister,  under  instructions, 
suspended  diplomatic  relations  with  that  country.^  A  notable 
repetition  of  the  same  procedure  recently  occurred  during  the 
boundary  controversy  between  Great  Britain  and  Venezuela. 
Mild  as  this  remedy  appears  to  be,  it  is  often  efficacious,  es- 
pecially when  the  injury  results  from  mere  delay  rather  than 
from  hostile  intention.  "^ 

In  the  case  of  the  suspension  of  diplomatic  relations  as  an 
event  preceding  war,  the  charge  of  the  nationals  and  interest 
of  the  withdrawing  country  is  placed  in  the  hands  of  the  rep- 
resentative of  another  country. 

President  John  Quincy  Adams,  in  his  annual  message  of  De- 
cember 4,  1827,  said:  "At  their  last  session  Congress  were  in- 
formed that  some  of  the  naval  officers  of  that  empire  (Brazil) 
had  advanced  and  practiced  upon  principles  in  relation  to  block- 
ade and  to  neutral  navigation  which  we  could  not  sanction 
and  which  our  commanders  found  it  necessary  to  resist.  It 
appears  that  they  have  not  been  sustained  by  the  government 
of  Brazil  itself.  Some  of  the  vessels  captured  under  the  as- 
sumed authority  of  these  erroneous  principles  have  been  re- 
stored, and  we  trust  that  our  just  expectations  will  be  realized, 
that  adequate  indemnity  will  be  made  to  all  the  citizens  of  the 

1  Wharton,  "Int.  Law  Digest,"  sec.  317. 

2  Taylor,  "Int.  Public  Law,"  sec.  433. 


MEASURES  OF  CONSTRAINT  SHORT  OF  WAR       285 

United  States  who  have  suffered  by  the  unwarranted  captures 
which  the  BraziKan  tribunals  themselves  have  pronounced 
unlawful. 

"In  the  diplomatic  discussions  at  Rio  de  Janeiro  of  these 
wrongs  sustained  by  citizens  of  the  United  States  and  of  others 
which  seemed  as  if  emanating  immediately  from  that  govern- 
ment itself,  the  charge  d'affaires  of  the  United  States,  under  an 
impression  that  his  representations  in  behalf  of  the  rights  and 
interests  of  his  countrymen  were  totally  disregarded  and  use- 
less, deemed  it  his  duty,  without  waiting  for  instructions,  to 
terminate  his  oflBcial  functions,  to  demand  his  passports,  and 
return  to  the  United  States.     This  movement,  dictated  by  an 
honest  zeal  for  the  honor  and  interest  of  his  country — motives 
which  operated  exclusively  on  the  mind  of  the  officer  who  re- 
sorted to  it — ^has  not  been  disapproved  by  me.    The  Brazilian 
Government,  however,  complained  of  it  as  a  measure  for  which 
no  adequate  intentional  cause  had  been  given  by  them;  and 
upon  an  explicit  assurance,  through  their  charge  d'affaires  re- 
siding here,  that  a  successor  to  the  late  representative  of  the 
United  States  near  that  government,  the  appointment  of  whom 
they  desired,  should  be  received  and  treated  with  the  respect 
due  to  his  character  and  that  indemnity  should  be  promptly 
made  for  all  injuries  inflicted  on  citizens  of  the  United  States 
or  their  property  contrary  to  the  law  of  nations;  a  temporary 
commission  as  charge  d'affaires  to  that  country  has  been  issued, 
which  it  is  hoped  will  entirely  restore  the  ordinary  diplomatic 
intercourse  between  the  two  governments  and  the  friendly 
relations  between  their  respective  nations."^ 

131.  Retorsions. — The  difference  between  retorsion  and 
reprisal  is  well  defined  by  Nys,  who  says  that  retorsions  are 
caused  by  a  want  of  justice,  while  reprisals  are  used  for  a  vio- 
lation of  law.2  Westlake  defines  it  more  fully  when  he  says 
that  retorsion  is  "  the  action  taken  by  a  state  in  order  to  com- 

»  Moore's  "Digest,"  vol.  VII,  pp.  103-4. 
«  Nys,  "Le  Droit  Int.,"  vol.  11,  p.  582. 


286     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

pensate  it  for  some  damage  suffered  through  the  action  of 
another  state,  or  in  order  to  deter  the  latter  from  continuing 
the  action  complained  of.  There  may  be  no  breach  of  law  on 
either  side,  as  when  state  A  imposes  customs  duties  which  do 
not  contravene  any  treaty,  and  state  B,  which  believes  its  in- 
terests to  be  damaged  by  them,  imposes  by  way  of  retorsion  cus- 
toms duties  from  which  it  also  is  not  debarred  by  any  treaty." 
These  are  matters  of  policy,  and  retorsion  generally  is  retalia- 
tion in  kind.  It  has  been  resorted  to  often  as  a  means  of  secur- 
ing fair  treatment,  rather  than  as  a  means  of  punishment,  and 
always  as  a  step  in  avoidance  of  war  by  a  rectification  or  rem- 
edy for  grievances.  It  is  less  serious  than  reprisal,  as  the  offence 
is  less  serious  than  the  ones  calling  for  reprisals. 

"By  the  act  of  April  18,  1819,  the  ports  of  the  United  States 
were  closed,  after  September  30,  1818,  against  British  vessels 
arriving  from  a  British  colony  which,  by  the  ordinary  laws,  was 
closed  against  American  vessels. 

"A  British  ship,  coming  from  a  foreign  port,  not  British,  to 
a  port  of  the  United  States,  did  not  become  liable  to  forfeiture 
under  this  act  by  touching  at  an  intermediate  British  closed 
port  from  necessity,  in  order  to  procure  provisions,  and  without 
trading  there.  Nor  did  the  act  prohibit  the  coming  of  British 
vessels  from  a  British  closed  port,  through  a  foreign  port,  not 
British,  where  the  continuity  of  the  voyage  was  actually  and 
fairly  broken." 

In  1855  Secretary  Marcy  gave  the  following  instructions: 
"The  Chinese  Government  having  persistently  refused  to  pay 
a  claim  for  personal  injuries  to  a  citizen  of  the  United  States 
which  it  admitted  to  be  due,  the  United  States  minister  at 
China  was,  in  1855,  instructed,  at  his  discretion  'to  resort  to 
the  measure  of  withholding  duties  to  the  amount  thereof.'"^ 

132.    Reprisals. — Reprisals  in  what  may  be  termed  peace 
time  are  sometimes  known  as  general  reprisals  to  distinguish 
them  from  special  acts  done  in  the  course  of  regular  warfare 
»  Moore's  "Digest,"  vol.  VII,  p.  106. 


MEASURES  OF  CONSTRAINT  SHORT  OF  WAR       287 

and  in  accordance  with  the  laws  of  modern  warfare.  These 
reprisals  are  in  accord  with  modern  tendencies  exercised  more 
against  the  state  whose  subjects  have  committed  acts  which 
may  be  considered  as  culpable  rather  than  against  the  sub- 
jects themselves. 

Bonfils  makes  a  general  definition  of  reprisals  as  being  mea- 
sures of  constraint,  of  more  or  less  extent,  causing  injuries  more 
or  less  considerable;  ways  and  means  which  vary  indefinitely 
according  to  the  nature  of  the  disputes,  according  to  the  means 
of  forcible  action  of  the  states,  and  in  accordance  with  the  form 
of  the  injustice  committed.^ 

The  following  acts  of  general  reprisal  may  be  considered  as 
having  the  sanction  of  usage  and  of  jurists: 

1.  The  seizure  and  sequestration  of  the  property  of  the 
offending  state  found  in  the  territory  of  the  other  state. 

2.  The  withdrawal  of  rights  which  had  been  conceded  to 
subjects  of  the  offending  state. 

3.  The  refusal  to  allow  such  subjects  to  enter  the  offended 
state. 

4.  Expulsion  of  all  subjects  of  such  state  from  the  territory 
of  the  offended  state. 

5.  A  prohibition  of  the  vessels  of  the  offending  state  from 
entry  into  the  ports  of  the  offended  state. 

6.  A  suspension  of  the  treaties  between  the  two  states. 

7.  A  suspension  partial  or  complete  of  the  commercial  inter- 
course between  the  two  states. 

8.  A  display  of  naval  force  in  the  littoral  waters  of  the  offend- 
ing state. 

9.  A  seizure  and  management  of  the  custom-houses. 

10.  A  pacific  blockade.  This  will  be  treated  separately 
elsewhere. 

The  occupation  by  force  of  certain  portions  of  the  territory 
to  be  held  until  redress  is  given,  or  the  capture  of  vessels,  ports, 
or  arsenals,  to  be  held  as  pledges,  are  practically  hostile  opera- 
» Bonfila,  "Int.  Law,"  3d  ed.,  p.  553. 


288     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

tions,  and  it  Is  difficult  to  reconcile  them  with  the  existence 
of  peace  or  as  simple  reprisals.  The  rights  of  neutrals  will  be- 
come so  involved  that  a  state  of  war  must  be  considered  as 
existing  and  it  is  extremely  doubtful  if  not  impossible  for  a 
state  of  quasi-war  to  exist  again,  as  in  the  case  between  France 
and  the  United  States  in  the  West  Indies  in  1798.  It  is  hardly 
necessary  to  say  that  the  more  forcible  reprisals  cannot  be  used 
without  war  against  any  other  country  than  a  weak  nationality. 

The  sequestration  or  seizure  of  property  belonging  to  the 
offending  state  or  of  its  citizens  has  been  more  than  once 
threatened  and  actually  enforced.  In  1849  Great  Britain  in 
the  Don  Pacifico  case  enforced  an  embargo  upon  Greek  ship- 
ping, that  is,  enforced  their  detention  in  port,  to  their  loss,  and 
also  seized  several  ships  of  war  in  the  Pireus.  In  1895  Great 
Britain,  having  been  unable  to  secure  the  required  redress  and 
indemnity  from  Nicaragua  for  the  expulsion  of  the  British 
vice-consul  and  other  British  subjects  and  their  property  from 
Bluefields  and  the  Mosquito  Reservation,  sent  a  naval  force  to 
Corinto,  a  Pacific  seaport  of  Nicaragua,  and  gave  an  ultimatum 
that  unless  the  indemnity  was  paid  within  three  days  Corinto 
would  be  occupied  by  the  British  forces.  Proper  response  not 
having  been  made,  a  force  was  landed  and  the  custom-house 
and  public  offices  of  Corinto  were  occupied.  Finally  the  gov- 
ernment of  Nicaragua  agreed  to  pay  the  indemnity  within 
fifteen  days  after  the  evacuation  of  Corinto  by  the  British 
forces,  the  payment  of  the  same  being  guaranteed  by  the  gov- 
ernment of  Salvador.  The  British  fleet  left  on  May  5,  1895, 
the  public  property  of  Nicaragua  being  in  its  possession  during 
the  occupation.  As  to  the  sequestration  of  the  property  of 
citizens  or  nationals  of  the  offending  state,  this  is  exemplified  by 
the  action  of  Great  Britain  in  1861  by  the  seizure  of  Brazilian 
merchant  vessels,  and  in  1873  by  that  of  Germany  in  the  seizure 
of  Haytian  merchant  vessels. 

As  to  embargo,  or  the  suspension  of  intercourse  between 
two  nations,  a  practical  example  of  this  occurred  in  our  own 
history  in  1807  after  the  Chesapeake  affair,  it  being  further  di- 


MEASURES  OF  CONSTRAINT  SHORT  OF  WAR       289 

rected  that  all  English  men-of-war  should  be  denied  our  ports. 
Great  Britain  apologized  for  this  affair  and  offered  indemnity  for 
the  victims.  Again,  in  1870,  the  President  of  the  United  States 
proposed,  in  the  way  of  an  indemnity,  that  power  should  be 
given  him  to  suspend  all  laws  authorizing  the  transportation  of 
merchandise  across  the  territory  of  the  United  States  to  Canada 
and  further,  if  necessary,  to  forbid  vessels  of  the  Dominion  of 
Canada  from  entering  the  waters  of  the  United  States.  This 
was  asked  for  on  account  of  the  action  of  the  Canadians  toward 
our  fishermen  but  was  never  exercised  by  the  United  States. 

The  suspension  of  treaties,  in  1798,  at  the  time  of  the  quasi- 
war  referred  to  above  with  France,  is  another  case.  At  this 
time  the  United  States  annulled  its  treaties  with  France  and 
directed  the  seizure  of  all  French  vessels  in  certain  portions  of 
the  world. 

The  withdrawal  of  privileges  to  aliens  has  been  exercised  at 
times  by  the  United  States,  as  in  the  passage  of  the  alien  act 
of  1798.  This  withdrawal  is  now  rarely  exercised,  but  still 
remains  within  the  power  of  states  in  times  of  peace. 

133.  Pacific  Blockade. — As  to  pacific  blockade  there  are 
now  a  number  of  cases  of  this  species  of  reprisal  or  application 
of  force.  The  legal  position  of  pacific  blockade  is  still  unsettled, 
as  the  attitude  of  the  blockaders  toward  vessels  of  states  not 
concerned  has  varied  with  almost  every  pacific  blockade,  and 
the  pacific  blockade  itself  has  always  been  applied  by  the 
stronger  naval  power  against  the  weaker  one.  The  alternative 
of  war  has  generally  not  been  accepted  by  the  weaker  power 
on  account  of  its  weakness  and  the  hopelessness  of  its  success. 

The  increasing  tendency  to  use  the  powerful  argument  of 
the  pacific  blockade  to  coerce  a  nation,  as  a  step  short  of  war, 
is  somewhat  due  to  the  varying  combinations  of  the  great  powers 
of  Europe,  with  a  view  to  keeping  matters  quiet  in  any  event 
in  fear  of  general  European  war.  It  is  an  anomaly  in  inter- 
national law,  there  being  no  war  and  consequently  no  bellig- 
erents and  no  neutrals.  It  is,  on  the  whole,  considered  illegal 
to  have  a  blockade  apply  to  a  third  or  non-concerned  powers 


290     INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

where  there  is  no  war,  and  yet  such  a  blockade  will  not  be  fully- 
effective  if  the  vessels  and  goods  of  these  powers  are  allowed 
to  enter  freely  and  if  the  blockade  is  confined  alone  to  the  ves- 
sels of  the  blockading  and  blockaded  countries. 

Each  case  properly  depends  upon  its  own  merits  and  above 
all  whether  it  will  be  worth  while  for  any  third  or  outside 
powers  to  interfere.  In  the  so-called  pacific  blockade  in  For- 
mosa by  the  French  against  the  Chinese,  which  involved  a 
capture  of  vessels  other  than  Chinese  and  French,  Great 
Britain  took  the  position  that  it  was  not  proper  and  would  not 
be  recognized  by  her  unless  regular  war  was  declared  against 
China.  But  in  the  late  blockade  of  Crete  by  the  European 
powers,  of  which  she  was  one,  the  right  of  search  was  exercised 
by  the  blockaders  upon  the  so-called  neutral  vessels,  and  they 
were  prohibited  to  land  cargo  destined  for  the  Greek  troops 
in  the  interior. 

De  Martens  says  as  to  the  legality  of  pacific  blockade  that 
it  is  admissible  but  not  logical,  while  Perels,  a  German  authority, 
speaks  decidedly  of  it  as  coming  clearly  under  the  head  of  re- 
prisals and  as  an  evil  less  than  war.  The  last  statement  is 
probably  the  one  that  will  make  it  acceptable  alone,  and  it 
will  probably  be  treated  in  the  future  as  a  blockade  with  war 
powers,  but  confined  to  the  parties  concerned  and  a  localized 
and  a  definitely  bound  area  of  operations. 

Two  instances  not  generally  mentioned  in  the  text-books 
may  be  profitably  discussed  as  late  examples  of  this  means  of 
reprisal. 

One  is  the  blockade  of  Zanzibar,  in  1888,  by  Great  Britain, 
Germany,  Italy,  and  Portugal,  and  was  specifically  directed 
against  the  slave-trade,  which  the  authorities  of  Zanzibar  were 
unable  or  unwilling  to  stop.  As  this  action  was  against  a 
specific  evil,  recognized  as  such  by  the  civilized  world,  no  in- 
ternational complications  were  involved. 

The  pacific  blockade  of  Crete  commenced  March  21,  1897. 
The  naval  forces  of  Great  Britain,  Austria-Hungary,  France, 


MEASURES  OF  CONSTRAINT  SHORT  OF  WAR       291 

Germany,  Italy,  and  Russia  put  the  island  of  Crete  in  a  state 
of  blockade  on  that  date  at  8  a.  m.  The  blockade  was  to  be 
general  for  all  ships  under  the  Greek  flag.  The  ships  of  the  six 
great  powers  or  what  may,  for  the  locality,  be  called  neutral 
powers  were  allowed  to  enter  into  the  ports  occupied  by  the 
blockading  powers  and  to  land  their  cargoes,  provided  they 
were  not  intended  for  the  Greek  troops  in  the  interior.  The 
merchant  ships  of  the  neutral  and  blockading  powers  were  to 
be  visited  by  the  vessels  of  war  of  the  international  fleet. 

This,  though  infringing  the  rights  of  neutrals,  was  less  radical 
than  the  first  definite  pacific  blockade  of  the  French  at  Vera 
Cruz,  in  1838,  where  the  vessels  of  the  third  powers  were  cap- 
tured and  confiscated. 

The  United  States  declared  with  respect  to  this  blockade, 
and  has  taken  the  position  as  a  general  one,  that  it  does  "not 
acquiesce  in  any  extension  of  the  doctrine  of  pacific  blockade 
which  may  adversely  affect  the  rights  of  states  not  parties  to 
the  controversy  or  discriminate  against  the  commerce  of  neu- 
tral nations." 

In  regard  to  the  blockade  of  Venezuelan  ports  in  1902  by 
Germany  and  Great  Britain,  this  enunciation  of  the  position 
of  the  United  States  was  repeated. 

The  blockade  of  the  Venezuelan  ports  was  stated  to  be  a 
warlike  blockade,  and  a  notice  was  published  to  that  effect 
on  December  20,  1902,  for  the  information  of  neutrals. 

Moore  says  that  it  may  be  observed  that  the  United  States 
did  not  take  the  ground  that  there  could  not  be  such  a  thing 
as  a  pacific  blockade,  for  it  stated  that  it  could  not  acquiesce 
"in  any  extension"  of  the  doctrine  of  pacific  blockade  so  as 
to  affect  "the  rights  of  states  not  parties  to  the  controversy." 

It  can  thus  be  seen  that  without  admitting  the  pacific  block- 
ade to  be  a  legal  means  of  restraint  or  reprisal  short  of  war, 
the  tendency  of  writers  is  to  favor  its  existence  in  a  manner 
not  to  involve  the  third  powers  or  to  antagonize  their  interests. 
Localized  as  it  should  be,  in  its  fields  of  operation,  it  is  far 


292  INTERCOURSE  OF  STATES  IN  TIME  OF  PEACE 

better  than  actual  war,  especially  a  European  war,  which  would 
be  likely  to  be  a  widely  spread  calamity. 

The  Institute  of  International  Law,  in  1887,  adopted  the  fol- 
lowing rules  as  expressing  their  judgment  as  to  the  proper  law 
upon  the  matter.    They  read  as  follows: 

"The  establishment  of  a  blockade  without  war  cannot  be  con- 
sidered as  permissible  under  international  law  except  under 
the  following  conditions: 

"1.  Ships  under  a  foreign  flag  can  enter  freely  notwithstand- 
ing the  blockade. 

"2.  The  pacific  blockade  must  be  officially  declared  and  noti- 
fied and  maintained  by  a  sufficient  force. 

"3.  The  ships  of  the  blockaded  power  which  do  not  respect 
such  a  blockade  may  be  sequestered.  When  the  blockade  has 
ceased  they  must  be  restored  to  their  owners  with  their  cargoes 
but  without  indemnity  on  any  ground."^ 

TOPICS  AND  REFERENCES 

1.  Measures  of  Constraint  Short  of  War  in  General — 

Hershey's  "Essentials,"  chap.  XXII,  343.  Stockton's  "Manual," 
148-152.     Oppenheim,  2d  ed.,  vol.  II,  chap.  II. 

2.  Suspension  of  Diplomatic  Relations — 

Moore's  "Digest,"  vol.  VII,  103,  105.  H.  Taylor,  "International 
Law,"  par.  433.    Oppenlieim,  2d  ed.,  vol.  II,  129. 

3.  Retorsions — 

Hall,  "International  Law,"  6th  ed.,  360.  Oppenheim,  2d  ed., 
36-38.  Davis,  "International  Law,"  3d  ed.,  263,  264.  Halleck, 
Baker's  ed.,  4th,  vol.  I,  503-4. 

4.  Reprisals — 

Phillimore,  "International  Law,"  3d  ed.,  vol.  II,  18-44.  Moore's 
"Digest,"  vol.  VII,  119-135.  Lawrence's  "Principles  of  Inter- 
national Law,"  4th  ed.,  334-344. 

5.  Pacific  Blockade — 

Davis,  "International  Law,"  3d  ed.,  267,  269.  Moore's  "Digest," 
vol.  VII,  135-142.     Oppenheim,  2d  ed.,  48-53. 

1  Westlake,  2d  ed.,  vol.  II,  pp.  16  and  17. 


PART  IV 
WAR-RELATIONS   OF  BELLIGERENTS 

CHAPTER  XVII 

GENERAL  QUESTIONS   AS  TO  WAR.     OUTBREAK  OF  WAR. 
ARMED  FORCES  OF  THE  STATE 

134.  General  Questions  as  to  War. — In  Doctor  Francis 
Lieber's  code  for  the  instructions  for  the  government  of  armies 
of  the  United  States  in  the  field  will  be  found  the  following  de- 
finition of  public  war,  which  remains,  to  my  belief,  the  best  de- 
finition extant. 

"Public  war  is  a  state  of  armed  hostilities  between  sover- 
eign nations  or  governments.  It  is  a  law  and  requisite  of  civ- 
ilized existence  that  men  live  in  political,  continuous  societies, 
forming  organized  units,  called  states  or  nations,  whose  con- 
stituents bear,  enjoy  and  suffer,  advance  and  retrograde  to- 
gether, in  peace  and  in  war. 

"  The  citizen  or  native  of  a  hostile  country  is  thus  an  enemy, 
as  one  of  the  constituents  of  the  hostile  state  or  nation,  and  as 
such  is  subjected  to  the  hardships  of  the  war. 

"Nevertheless,  as  civilization  has  advanced  during  the  last 
centuries,  so  has  likewise  steadily  advanced,  especially  in  war 
on  land,  the  distinction  between  the  private  individual  belong- 
ing to  a  hostile  country  and  the  hostile  country  itself,  with  its 
men  in  arms.  The  principle  has  been  more  and  more  acknowl- 
edged that  the  unarmed  citizen  is  to  be  spared  in  person, 
property,  and  honor  as  much  as  the  exigencies  of  war  will 
admit."i 

>  Lieber'a  "Instructions,"  etc.,  found  in  Appendix  A,  Davis,  "Int.  Law.'f 

293 


294  WAR-RELATIONS  OF  BELLIGERENTS 

To  this  may  be  added  the  following:  that  "the  general  ob- 
ject of  war  is  to  procure  the  complete  submission  of  the  enemy 
at  the  earliest  possible  period  with  the  least  expenditure  of  life 
and  property."^ 

The  cause  of  war  may  be,  in  general,  defined  as  the  result  of 
a  conflict  of  wills  between  two  or  more  states  or  governments. 
War,  it  has  been  well  said,  is  a  political  fact  rather  than  a  legal 
right  and  is  a  high  exercise  of  the  sovereignty  of  the  state  and 
an  essential  right  inherent  in  such  sovereignty.^ 

War  changes  the  relations  of  all  states.  The  relations  of 
the  contending  parties,  who  become  known  as  the  belligerents, 
are  at  once  directly  affected  by  this  change  from  a  normal  to 
an  abnormal  state  of  affairs,  and  indirectly  the  relations  of  the 
states  which  take  no  part  in  the  war  become  changed  toward  the 
belligerents  as  they  now  assume  the  position  of  neutrals. 

In  the  eyes  of  international  law  all  wars  are  just,  in  so  far  as 
the  belligerent  rights  of  the  parties  are  concerned.  That  is 
to  say,  third  states  or  neutrals  are  not  permitted  to  hold  that 
one  of  the  parties  is  wrong  and  hence  not  entitled  to  the  rights 
of  war.^ 

There  is  an  important  distinction  between  war  upon  the 
land  and  that  upon  the  sea,  and  a  growing  distinction  still 
further  between  maritime  and  land  warfare  and  that  known  as 
aerial  warfare.  These  differences  are  not  only  due  to  the 
difference  of  the  theatre  of  action  but  also  to  the  instruments 
of  warfare  and  the  methods  of  combat.  In  addition,  there  is 
the  difference  in  the  judicial  application  bearing  upon  one  as 
distinguished  from  the  other  and  the  codes  of  laws  pertaining 
to  each.  A  close  discussion  of  these  differences  with  the  ac- 
companying codes  of  law  will  be  found  in  future  chapters. 

135.  Outbreak  of  War. — The  most  recent  and  definite 
contribution  to  this  subject  is  found  in  the  Convention  III  of 

^  "Laws  and  Usages  of  War  at  Sea,"  Stockton,  p.  5. 

2  Hershey's  "Essentials,"  p.  349. 

'Snow's  "Int.  Law,"  ed.  by  Stockton,  2d  ed.,  p.  76. 


GENERAL  QUESTIONS  AS  TO  WAR  295 

the  second  Hague  conference  relative  to  the  commencement 
of  hostilities.  This  has  been  ratified  by  the  United  States  and 
signed  by  almost  all  of  the  nations  composing  the  second 
Hague  conference. 

Article  I  of  this  convention  contains  the  following  words: 
"The  contracting  powers  recognize  that  hostilities  between 
them  must  not  commence  without  a  previous  and  unequivocal 
warning,  which  shall  take  the  form  either  of  a  declaration  of 
war,  giving  reasons,  or  of  an  ultimatum  with  a  conditional 
declaration  of  war." 

Article  H  continues:  "The  state  of  war  should  be  notified 
to  the  neutral  powers  without  delay  and  shall  not  take  effect 
in  regard  to  them  until  after  the  receipt  of  a  notification,  which 
may  even  be  made  by  telegraph.  Nevertheless,  neutral  powers 
cannot  plead  the  absence  of  notification  if  it  be  established  be- 
yond doubt  that  they  were  in  fact  aware  of  the  state  of  war." 

The  period  of  time  between  the  declaration  of  war  and  the 
commencement  of  hostilities  is  left  by  this  convention  unde- 
termined. "The  use  of  a  declaration  does  not,  of  course,"  as 
Hall  says,  "exclude  surprise,  but  it  at  least  provides  that 
notice  shall  be  served  an  infinitesimal  space  of  time  before  a 
blow  is  struck."^ 

An  amendment  was  proposed  by  the  Dutch  delegation  at 
The  Hague  providing  that  hostilities  should  not  commence 
until  the  lapse  of  twenty-four  hours  from  the  time  of  the 
definite  declaration  of  war.  This  was  rejected,  but  if  adopted 
might  have  important  consequences  with  respect  to  possible 
changes  of  position  of  naval  forces  and  military  transports 
with  resulting  grave  effects  in  the  early  stages  of  a  maritime 
campaign.  Italy,  since  the  adoption  of  The  Hague  convention 
in  1911,  allowed  no  period  of  time  after  the  ultimatum  was  de- 
livered to  Turkey,  but  commenced  hostilities  strictly  without 
delay.  The  declarations  of  war  and  the  recognition  of  its 
existence  was  very  much  complicated  in  the  present  European 
1  Hall,  "Int.  Law,"  Gth  ed.,  p.  378. 


296  WAR-RELATIONS  OF  BELLIGERENTS 

war  by  the  vast  area  of  the  war  and  the  number  of  states  en- 
gaged and  the  alliances  formed  by  circumstances.  It  is  too 
early  to  discuss  this  matter  intelligently. 

The  convention  just  referred  to  applies,  of  course,  only  to 
the  signers  of  the  convention  but  it  may  be  said  to  be  estab- 
lished with  respect  to  all  wars  between  states.  In  cases  of 
civil  war  no  declaration  or  ultimatum  is  used,  but  an  act  by 
which  belligerency  is  recognized  either  by  the  titular  govern- 
ment or  external  powers  converts  it  into  war  with  a  more  or  less 
definite  date  for  its  commencement  and  conclusion.  The  gov- 
ernment against  which  the  insurrection  or  rebellion  is  directed, 
should,  especially  if  the  rebel  forces  have  a  real  government  at 
their  head,  recognize  the  state  of  war  as  a  matter  of  humanity. 

In  regard  to  armed  interventions  which  become  war.  West- 
lake  says  that  "  what  has  been  said  about  the  commencement 
of  war  will  not  in  general  apply  to  those  armed  contests  which 
arise  out  of  the  intervention  of  a  state  in  the  internal  dissen- 
sions of  another  state.  Such  interventions,  are  usually  under- 
taken by  stronger  powers  in  the  affairs  of  weaker  ones  or  by  a 
coalition  in  the  affairs  of  a  single  power  and  are,  therefore, 
usually  successful  for  the  time,  although  the  resentment  they 
cause  may  aid  in  producing  a  reaction  later.  Consequently,  if 
the  party  intervened  against  is  not  in  possession  of  the  govern- 
ment, it  will  probably  be  put  down  without  a  state  of  war 
having  existed  between  the  two  powers,  although  the  laws  of 
war  ought  to  be  and  probably  will  have  been  observed  in  the 
fighting.  There  will  have  been  no  declaration  of  war  nor  any 
occasion  for  one.  If,  on  the  other  hand,  the  party  intervened 
against  is  in  possession  of  the  government,  as  Napoleon  was  in 
possession  of  that  of  France  in  1815  and  the  Constitutionalists 
of  that  of  Spain  in  1823,  there  will  still  be  no  declaration  of 
war,  because  the  interveners,  not  recognizing  the  actual  gov- 
ernment as  legitimate,  will  not  admit  that  their  quarrel  with  it 
is  a  quarrel  with  the  state  which  it  claims  to  represent.  Here 
also,  therefore,  there  will  not  be  a  state  of  war  with  the  usual 


GENERAL  QUESTIONS  AS  TO  WAR  297 

abrogation  or  suspension  of  treaties  as  its  effect,  and  yet  the 
struggle  may  be  such  that  at  its  close  some  new  arrangements 
between  the  de  facto  belHgerents  may  be  desirable.  Thus,  in 
1815  the  allies  did  not  declare  war,  and  they  allowed  the  repre- 
sentatives of  Louis  XVIII  to  sign  on  behalf  of  France  their 
manifesto  of  13th  March  against  Napoleon  and  on  9th  June  the 
final  act  of  the  congress  of  Vienna,  while  de  facto  hostilities 
were  onward  between  them  and  the  actual  government  of  that 
country.  The  struggle  was  closed  by  the  treaty  of  20th  No- 
vember, 1815,  which  was  not  nominally  one  of  peace,  but  in 
Article  10  of  which  'the  hostilities'  are  mentioned;  and  that 
treaty  was  described  as  one  of  peace  in  the  protocol  and  decla- 
ration of  ALx-la-Chapelle,  15th  November,  1818.  Similarly 
the  French  invasion  of  Spain  in  1823  produced  no  technical 
state  of  war  and  was  followed  by  a  convention,  5th  January, 
1824,  about  the  maritime  prizes  taken."  ^ 

The  commencement  of  war  affects  very  seriously  other  states 
than  those  engaged  in  hostilities.  They  become  neutrals, 
keeping  friendly  relations  with  both  belligerents  but  having 
restricted  intercourse  so  as  to  be  impartial  parties  so  far  as  the 
contest  is  concerned.  The  rules  of  international  law  create 
certain  rights  and  conditions  to  neutral  states  which  only  exist 
in  a  state  of  war.  These  limitations  and  duties  begin  at  once 
with  the  existence  of  war,  and  hence  the  immediate  knowledge 
of  the  declaration  or  commencement  of  war  is  a  matter  of 
importance  to  neutrals.  This  knowledge  must  be  made  public, 
as  the  subjects  also  of  a  state  are  affected  with  their  govern- 
ment in  the  changed  relations  resulting  from  war. 

The  status  of  enemy  merchant  ships  at  the  outbreak  of  hos- 
tilities will  be  discussed  under  the  head  of  maritime  warfare. 
This  discussion  will  include  the  question  of  the  days  of  grace, 
so-called,  as  a  reasonable  period  to  allow  a  belligerent  merchant 
vessel  to  load  and  depart  from  the  port  of  an  enemy.  The 
allowance  of  the  days  of  grace  under  current  opinion  is  rather 
a  favor  than  an  obligation. 

» Weetlake,  "Int.  Law,"  2d  ed.,  vol.  2,  pp.  28-29. 


298  WAR-RELATIONS  OF  BELLIGERENTS 

136.  Armed  Forces  of  the  State. — ^The  armed  forces  of 
the  state  in  a  comprehensive  sense  consist  of  its  army  and 
navy. 

The  expression  "army"  not  only  includes  its  standing  army, 
or  regular  military  service,  but  its  militia,  reserves,  and  corps  of 
volunteers.  According  to  The  Hague  convention  of  1907  they 
must  meet  the  following  conditions: 

1.  That  of  being  commanded  by  a  person  responsible  for 
his  subordinates. 

2.  That  of  having  a  distinctive  emblem  fixed  and  recogniza- 
ble at  a  distance. 

3.  That  of  carrying  arms  openly;  and 

4.  That  of  conducting  their  operations  in  accordance  with 
the  laws  and  customs  of  war. 

In  countries  where  militia  or  corps  of  volunteers  constitute 
the  army,  or  form  part  of  it,  they  are  included  under  the  de- 
nomination "army." 

The  population  of  a  territory  which  has  not  been  occupied, 
who,  on  the  approach  of  the  enemy,  spontaneously  take  up 
arms  to  resist  the  invading  troops  without  having  had  time  to 
organize  themselves  in  accordance  with  the  previous  article, 
shall  be  regarded  as  belligerents  if  they  carry  arms  openly  and 
if  they  respect  the  laws  and  customs  of  war. 

The  armed  forces  of  the  belligerent  parties  may  consist  of 
combatants  and  non-combatants.  In  case  of  capture  by  the 
enemy  both  have  a  right  to  be  treated  as  prisoners  of  war. 

The  non-combatants  referred  to  above  are  of  many  kinds, 
such  as  telegraph  operators,  couriers,  aeronauts,  surgeons, 
chaplains,  nurses,  teamsters,  sutlers,  civilian  attaches  of  the 
staff  of  the  commander-in-chief,  servants,  etc. 

In  addition  to  the  armed  forces  of  the  state  duly  constituted 
for  land  warfare,  the  following  are  recognized  as  armed  forces 
of  the  state. 

(1)  The  officers  and  men  of  the  navy,  naval  reserve,  naval 
militia,  and  their  auxiliaries. 


GENERAL  QUESTIONS  AS  TO  WAR  299 

(2)  The  officers  and  men  of  all  other  armed  vessels  cruising 
against  the  enemy  under  lawful  authority.^ 

The  use  of  auxiliary,  subsidized,  or  privately  owned  vessels 
regularly  incorporated  in  the  naval  forces  of  a  country  is  in 
accord  with  general  opinion  and  practice  in  time  of  war. 

TOPICS  AND  REFERENCES 

1.  General  Questions  as  to  War — 

Oppenheim,  2d  ed.,  vol.  II,  59-121.  Hershey's  "Essentials,"  349- 
354.    Moore's  "Digest,"  vol.  VII,  par.  1100-5. 

2.  Outbreak  of  War— 

Oppenheim,  2d  ed.,  vol.  II,  121-144.  Wheaton,  8th  ed.,  part  IV, 
chap.  I,  and  Dana's  notes,  nos.  156-8.  Halleck,  Baker's  4th  ed., 
chap.  XVII,  574,  etc. 


3.  Armed  Forces  of  the  State 

Higgins,  "Peace  Conference,  Convention  IV,  Belligerents,"  219- 
221.  Stockton's  "Laws  and  Usages  of  War  at  Sea."  Oppen- 
heim, 2d  ed.,  vol.  II,  94-106. 

»  Stockton's  "Laws  and  Usages  of  War,"  p.  9.' 


CHAPTER  XVIII 

EFFECT  OF  WAR  UPON  INDIVIDUALS.    EFFECT  OF  WAR  AS 

TO  PROPERTY 

137.  Effect  of  War  upon  Combatants  and  Non-combatants. 
— Doctor  Lieber,  in  the  instructions  prepared  by  him  for  the 
government  of  armies  of  the  United  States  in  the  field,  which 
are  known  in  the  United  States  army  as  General  Orders  No.  100 
and  which  orders  were  reissued  without  modification  for  the 
government  of  the  armies  of  the  United  States  during  the  war 
with  Spain,  says  in  Article  21:  "The  citizen  or  native  of  a  hos- 
tile country  is  thus  an  enemy,  as  one  of  the  constituents  of  the 
hostile  state  or  nation,  and  as  such  is  subjected  to  the  hardships 
of  war. 

"Nevertheless,  as  civilization  has  advanced  during  the  last 
centuries,  so  has  likewise  steadily  advanced,  especially  in  war 
on  land,  the  distinction  between  the  private  individual  belong- 
ing to  a  hostile  country  and  the  hostile  country  itself  with  its 
men  in  arms.  The  principle  has  been  more  and  more  acknowl- 
edged that  the  unarmed  citizen  is  to  be  spared  in  person,  prop- 
erty, and  honor  as  much  as  the  exigencies  of  war  will  admit. 

"  Private  citizens  are  no  longer  murdered,  enslaved,  or  carried 
off  to  distant  parts,  and  the  inoffensive  individual  is  as  little 
disturbed  in  his  private  relations  as  the  commander  of  the 
hostile  troops  can  afford  to  grant  in  the  overruling  demands 
of  a  vigorous  war. 

"The  almost  universal  rule  in  remote  times  was,  and  con- 
tinues to  be  with  barbarous  armies,  that  the  private  individual 
of  the  hostile  country  is  destined  to  suffer  every  privation  of 
liberty  and  protection  and  every  disruption  of  family  ties. 

300 


EFFECT  OF  WAR  UPON  INDRIDUALS  301 

Protection  was,  and  still  is  with  uncivilized  people,  the  excep- 
tion. 

"In  modern  regular  wars  of  the  Europeans  and  their  de- 
scendants in  other  portions  of  the  globe  protection  of  the  in- 
offensive citizen  of  the  hostile  country  is  the  rule;  privation  and 
disturbance  of  private  relations  are  the  exceptions.  The  effect 
of  mobilization  in  modern  times  being  to  disarrange  ordinary 
means  of  travel  and  transport,  all  aliens  must  submit  to  this 
fact  and  to  its  inconveniences  as  results  of  the  inconvenience 
of  war. 

"Commanding  generals  may  cause  the  magistrates  and  civil 
officers  of  the  hostile  country  to  take  the  oath  of  temporary 
allegiance  or  an  oath  of  fidelity  to  their  own  victorious  govern- 
ment or  rulers,  and  they  may  expel  every  one  who  declines  to 
do  so.  But  whether  they  do  so  or  not,  the  people  and  their 
civil  officers  owe  strict  obedience  to  them  as  long  as  they  hold 
sway  over  the  district  or  country,  at  the  peril  of  their  lives."  ^ 

"On  the  outbreak  of  war,"  says  Higgins,  "intercourse  be- 
tween the  citizens  of  our  state  and  those  of  the  enemy  must 
cease;  diplomatic  agents  and  consuls  will  be  withdrawn;  some 
treaties  are  at  once  annulled,  others  suspended,  while  those 
regulating  the  conduct  of  hostilities  come  into  force.  Subjects 
of  the  belligerents  travelling  or  resident  in  the  enemy  country 
will  probably  be  allowed  to  continue  their  residence  unmolested 
so  long  as  they  do  nothing  hostile  to  the  state,  or  they  may  be 
permitted  to  return  by  a  neutral  route  unless  they  are  state 
officials,  officers  or  members  of  the  armed  forces  of  the  nation, 
though  in  case  of  military  necessity  even  private  citizens  may 
be  expelled  on  short  notice,  as  has  been  done  in  several  of  the 
wars  of  the  past  half  century."  * 

In  a  broad  sense  the  citizens  or  subjects  of  a  belligerent 
state  are  divided  into  combatants  and  non-combatants. 

Combatants  are  persons  included  in  the  armed  forces  of  the 

»  Davis,  "Elements  of  Int.  Law,"  3d  cd.,  pp.  508-9. 
*  Higgins,  "War  and  the  Private  Citizen,"  p.  28. 


302  WAR-RELATIONS  OF  BELLIGERENTS 

belligerent  states  who  are  bearing  arms  for  warlike  purposes. 
They  may  be  killed  or  wounded  in  fight  and  if  captured  may  be 
held  as  prisoners  of  war  until  exchanged  or  the  war  ceases. 
Their  nationality  makes  no  difference  as  to  their  status  or 
treatment  unless  they  are  subjects  or  citizens  of  the  state 
against  which  they  are  fighting  or  deserters  from  the  armed 
forces  of  the  same  state.  In  such  cases  they  are  liable  to  execu- 
tion as  traitors  or  deserters  if  captured  instead  of  being  held  as 
prisoners  of  war.  Otherwise  they  are  entitled  to  all  of  the 
rights  of  war  under  the  rules  prescribed  as  in  international 
law  and  conventions. 

If  they  are  neutrals  in  the  ranks  of  belligerents  they  re- 
ceive the  same  treatment  as  individuals  of  the  enemy  state. 
They  are  entitled  neither  to  immunities  nor  to  special  severities. 
It  is  true  that  their  own  state  may  have  the  right,  seldom  ex- 
ercised, of  punishing  them  for  a  breach  of  neutrality  law,  but 
so  far  as  the  enemy  state  is  concerned  they  are  in  all  respects 
lawful  combatants. 

Non-combatants  are  those  individuals  belonging  to  the  bellig- 
erent states  not  bearing  arms  but  engaged  in  peaceful  pur- 
suits. They  are,  when  not  concerned  in  hostile  movements 
or  in  the  violations  of  the  rules  of  war,  free  from  military  attack 
or  imprisonment.  They  are,  however,  exposed  to  all  of  the 
personal  inconveniences  and  injuries  wliich  may  arise  inci- 
dentally from  military  or  naval  operations,  such  as  an  attack 
or  bombardment  of  a  defended  place,  firing  upon  ships  carrying 
passengers,  or  any  belligerent  actions  toward  the  railways  of 
and  used  by  an  army  and  similar  acts  of  war. 

The  services  of  non-combatant  inhabitants  of  an  occupied 
territory  may  be  required  and  used  by  the  occupying  forces 
if  they  are  not  of  such  a  nature  as  to  involve  them  directly  in 
military  operations  against  their  own  country.  In  regard  to 
this.  Article  52  of  the  laws  and  customs  of  war  on  land,  Hague 
Convention  No.  IV,  says  that  "neither  requisitions  in  kind 
nor  services  can  be  demanded  from  communes  or  inhabitants. 


EFFECT  OF  WAR  UPON  INDIVIDUALS  303 

except  for  the  necessities  of  the  army  of  occupation.  They 
must  be  in  proportion  to  the  resources  of  the  country  and  of 
such  a  nature  as  not  to  imply  for  the  population  any  obligation 
to  take  part  in  military  operations  against  their  country. 

"These  requisitions  and  services  shall  only  be  demanded  on 
the  authority  of  the  commander  in  the  locality  occupied. 

"Supplies  in  kind  shall,  as  far  as  possible,  be  paid  for  in 
ready  money;  if  not,  their  receipt  shall  be  acknowledged." 

Other  matters  that  involve  non-combatants  in  case  of  occu- 
pied territory  will  be  discussed  later. 

There  are  certain  non-combatants  who  from  their  prestige, 
high  position,  and  great  importance  to  the  enemy  can  be  cap- 
tured and  retained  as  prisoners  of  war.  These  include  the 
reigning  monarch  and  members  of  his  family,  also  the  chief 
ruler  of  a  country,  the  chief  oflficers  of  the  enemy  government, 
and  any  other  persons  whose  capture  for  evident  reasons  may 
be  of  great  value  to  the  belligerent. 

A  belligerent  state  is  not  obliged  to  permit  the  nationals  of 
an  enemy  to  remain  in  his  territory  although  this  is  frequently 
done.  It  can  be  considered  that  by  the  rules  of  international 
law  such  nationals,  if  not  permitted  to  remain,  must  have  a 
reasonable  time  for  withdrawal.  This  does  not, apply  to  the 
subjects  of  an  enemy  who  are  in  the  military  service  of  the 
enemy,  as  active  or  reserve  officers  or  men  who  may  be  detained 
as  prisoners  of  war.  As  to  the  treatment  of  subjects  or  citizens 
of  the  enemy  who  are  not  in  the  military  services,  the  practice 
as  to  their  expulsion  varies  even  in  modern  times.  When  large 
numbers  of  the  nationals  of  an  enemy  are  in  the  territory  of 
other  belligerents  and  from  the  necessary  military  movement 
cannot  be  received  by  their  own  country,  it  is  not  unreasonable, 
if  considered  wise,  to  intern  them  in  a  chosen  section  of  the 
country  in  which  they  have  been  domiciled. 

Oppenheim  says:  "Thus,  during  the  Crimean  War  Russian 
subjects  in  Great  Britain  and  France  were  allowed  to  remain 
there,  as  were  likewise  Russians  in  Japan  and  Japanese  in 


304  WAR-RELATIONS  OF  BELLIGERENTS 

Russia  during  the  Russo-Japanese  War  and  Turks  in  Italy 
during  the  Turco-ItaUan  War.  On  the  other  hand,  France  ex- 
pelled all  Germans  during  the  Franco-German  War  in  1870; 
the  former  South  African  republics  expelled  most  British  sub- 
jects when  war  broke  out  in  1899;  Russia,  although  during  the 
Russo-Japanese  War  she  allowed  Japanese  subjects  to  remain 
in  other  parts  of  her  territory,  expelled  them  from  her  provinces 
in  the  Far  East;  and  in  May,  1912,  eight  months  after  the 
outbreak  of  the  Turco-Italian  War,  Turkey  decreed  the  expul- 
sion of  all  Italians,  certain  classes  excepted.  In  case  a  bellig- 
erent allows  the  residence  of  enemy  subjects  on  his  territory, 
he  can,  of  course,  give  the  permission  under  certain  conditions 
only,  such  as  an  oath  to  abstain  from  all  hostile  acts,  or  a 
promise  not  to  leave  a  certain  region,  and  the  like.  And  it 
must  be  especially  observed  that  an  enemy  subject  who  is 
allowed  to  stay  in  the  country  after  the  outbreak  of  war  must 
not,  in  case  the  forces  of  his  home  state  militarily  occupy  the 
part  of  the  country  inhabited  by  him,  join  these  forces  or  as- 
sist them  in  any  way.  If,  nevertheless,  he  does  so,  he  is  liable 
to  be  punished  for  treason  by  the  local  sovereign  after  the 
withdrawal  of  the  enemy  forces."^ 

Bynkershoek  and  British  and  American  writers  and  a  few 
only  of  the  continental  school  follow  the  rule  that  all  intercourse 
and  commercial  trading  is  automatically  closed  between  the 
nationals  of  the  opposing  belligerents  unless  specially  permitted 
between  the  forces  of  the  respective  countries,  in  accordance 
with  the  laws  of  war  or  by  special  license  from  the  governments 
of  the  respective  states. 

The  difference  between  the  two  schools  is  one  mainly  as  to 
the  normal  condition  of  affairs  at  the  outbreak  of  war,  one 
school  maintaining  a  normal  cessation  of  intercourse  with  right 
to  issue  special  licenses  as  to  trade,  while  the  other  considers 
the  normal  state  to  be  of  free  intercourse  with  complete  rights 
as  to  prohibition,  etc.^ 

1  Oppenheim,  2d  ed.,  vol.  II,  pp.  131,  132. 
»  Oppenheim,  2d  ed.,  vol.  II,  p.  135. 


EFFECT  OF  WAR  UPON  INDIVIDUALS  305 

"There  are  some  persons  of  the  non-combatant  class  who 
possess  the  character  of  an  enemy  to  a  degree,  so  as  to  affect 
their  property  in  cases  in  which  it  is  involved. 

"They  are: 

"1.  Persons  residing  in  an  enemy  comitry  though  not  sub- 
jects of  it. 

"'These/  as  Lawrence  says,  'are  enemies  to  one  belligerent 
in  so  far  as  they  are  identified  with  the  other.'  That  is  to  say, 
any  property  they  possess  in  connection  with  their  residence 
is  enemy  property  in  case  it  is  exposed  to  maritime  capture, 
or  in  case  the  territory  in  which  they  reside  is  a  place  of  war- 
like operations  and  actual  hostilities.  The  fact  that  the  per- 
son is  a  subject  of  the  country  of  the  invaders  would  not  ex- 
empt his  property  or  himself  from  disabilities  or  from  use  if 
needed  by  a  belligerent  for  military  purposes. 

"2.  Persons  living  in  places  in  the  military  occupation  of 
the  enemj'. 

"People  in  this  class  enrich  the  occupying  enemy  by  con- 
tributing, though  unwillingly,  to  his  warlike  resources.  If  the 
enemy  is  dispossessed  they  lose  their  enemy  taint  and  become 
in  all  respects  subjects  of  their  own  states.  During  our  Civil 
War  the  courts  held  that  all  places  in  secure  possession  of  the 
Southern  Confederacy  were  enemy  territory  and  the  property 
there  enemy  property  so  far  as  warlike  capture  was  concerned 
and  without  regard  to  the  question  of  individual  loyalty."^ 

138.  Effect  of  War  as  to  Property. — All  property  belonging 
to  the  enemy  state  in  the  territory  of  the  opposing  belligerent 
becomes  the  property  of  that  belligerent  at  once  and,  if  of  a 
warlike  nature,  is  not  only  subject  to  possession  at  once  but 
also  to  retention  or  destruction.  If  not  of  a  warlike  nature  or 
of  the  nature  of  resources  useful  for  the  current  needs,  such  as 
foodstuffs,  such  property  can  be  used  but  is  not  subject  to 
wanton  destruction.  A  familiar  historical  example  of  the  vio- 
lation of  this  rule  was  the  destruction  or  partial  destruction  of 
the  Capitol  and  other  public  buildings  in  Washington  during 
»  Stockton's  "Manual,"  pp.  181,  182. 


306  WAR-RELATIONS  OF  BELLIGERENTS 

the  War  of  1812  by  the  British  forces.  Even  English  writers 
of  the  present  day  do  not  condone  this  action,  which  was  ex- 
ceptional in  the  experience  of  modern  wars.  The  excuse  was 
offered  by  the  British  authorities  at  the  time  that  it  was  in 
retaliation  for  the  burning  of  the  village  of  Newark,  in  Canada, 
by  our  forces;  but  it  was  established  that  this  burning  was  an 
incident  of  the  hostile  operations  there  and  not  deliberate, 
and,  besides,  no  complaint  had  been  made  to  us  nor  reparation 
asked.  It  is  reasonably  well  established  that  before  retaliation 
can  be  exercised  against  an  enemy  proper  reparation  should 
be  asked,  which,  if  refused,  then  gives  a  right  to  exercise  re- 
taliation. 

"Property  belonging  to  a  state  or  territory  occupied  by  an 
enemy  cannot  be  sold  by  the  occupying  belligerents.  The 
property  can  be  used  or  rented  by  the  belligerent,  but  upon  his 
departure  he  has  neither  the  right  to  destroy  it,  if  it  be  not  of 
a  military  nature,  nor  to  sell  it.  All  such  acquired  titles  are 
illegal  and,  of  course,  not  recognized  by  the  state  to  which  they 
belong  upon  reoccupation. 

"The  seizure  of  money  belonging  to  the  enemy  state  is  legiti- 
mate, except  funds  set  apart  for  hospitals,  schools,  and  for 
scientific  or  artistic  objects.  Taxes  for  local  administrative 
purposes,  such  as  roads,  police,  lighting  towns,  etc.,  are  not 
legitimate  objects  of  capture  or  confiscation.  Timber  can  be 
cut  and  sold  from  state  forests,  but  apart  from  the  necessities 
of  war,  such  as  the  necessity  for  fuel,  etc.,  timber  should  not 
be  cut  so  as  to  affect  the  future  annual  productiveness  of  the 
timbered  lands.  During  the  Franco-German  War,  for  instance, 
the  German  authorities  sold  fifteen  thousand  oaks  growmg  in 
the  state  forests  in  certain  departments  of  France.  After  the 
war  the  French  authorities  seized  those  which  had  not  already 
been  removed.  The  purchasers  appealed  to  the  German 
Government,  but  the  latter  left  it  to  the  French  courts,  whidi 
annulled  the  sale  as  being  wasteful  and  excessive."^ 
i Stockton's  "Manual,"  pp.  182, 183. 


EFFECT  OF  WAR  UPON  INDIVIDUAI^  307 

Property  belonging  to  individual  citizens  or  subjects  of  the 
enemy  state,  though  assuming  the  character  of  enemy  property, 
is  exempt  from  pillage,  by  which  is  meant  open  robbery  by 
soldiery.  This  exemption  by  the  modern  laws  of  warfare  ex- 
tends even  to  capture  of  a  place  by  assault. 

While  private  property  of  the  enemy  on  land  is  now  free 
from  direct  seizure,  still  through  contributions,  requisitions, 
levies,  etc.,  such  property  is  liable  to  heavy  exactions,  other 
than  the  customary  taxes,  dues,  and  tolls  imposed  for  the  local 
benefit.  The  direct  results  of  a  march  of  an  army,  not  to  say 
hostilities  in  an  enemy  country,  is  most  likely  to  bear  hardly 
upon  the  property  of  non-combatants.  Naturally,  railway 
plants,  telegraphs,  telephones,  and  appliances  generally  for 
transmission  of  news  or  for  transport,  such  as  horses,  carriages, 
automobiles,  carts,  and  drays,  are  liable  to  be  seized  and  used 
more  or  less  exclusively  for  military  purposes.  This  use  can 
hardly  be  compensated  by  restoration  and  indemnities.^ 

Besides  the  possibility  of  the  use  of  private  property  on  land 
for  hostile  purposes,  there  is  also  the  liability  of  direct  destruc- 
tion of  anything  approaching  military  resources  in  case  devas- 
tation is  ordered  to  prevent  supplies  being  obtained  by  the 
opposing  belligerent. 

Merchant  ships  of  a  belligerent  which  happen  to  be  in  the 
ports  of  the  enemy  at  the  outbreak  of  war  may  be  allowed  to 
depart  after  a  few  days  of  grace. 

Private  property  under  an  enemy  flag  at  sea  is  still  liable, 
with  a  few  exceptions,  to  capture  and  confiscation  by  the  laws 
of  the  United  States,  although  we  have  by  action  of  Congress 
expressed  our  desire  to  see  this  liability  abolished  by  the  uni- 
versal assent  of  the  maritime  powers. 

"  There  are  some  anomalies  that  would  come  within  this  sub- 
ject, as  when  one  belligerent  assumes  a  protectorate  over  an- 
other state  or  country.     In  this  case  war  does  not  necessarily 

*  Arte.  51,  52,  53,  and  54  of  Convention  IV  of  Second  Hague,  Iliggins, 
"Hagu8  Con/ereuces." 


308  WAR-RELATIONS  OF  BELLIGERENTS 

exist  between  the  protected  state  and  the  other  belligerent.  A 
case  in  point  was  the  position  of  the  Ionian  Islands  in  the 
Crimean  War.  This  little  republic,  under  the  protectorate  of 
Great  Britain,  still  kept  up  its  trade  with  Russia,  and  an 
Ionian  vessel  captured  for  trading  with  the  enemy  was  re- 
leased by  the  English  courts  on  the  ground  that  the  Ionian 
Republic  was  not  at  war  with  Russia.  Hall  gives  a  good  rule 
for  such  cases  when  he  says  that  the  use  to  which  a  country  or 
place  is  put  by  the  power  which  exercises  de  Jado  control  de- 
termines the  neutrality  or  belligerency  of  the  territory."  * 

TOPICS  AND  REFERENCES 

1.  Eflfect  of  War  upon  Combatants  and  Non-combatants — 

Lieber,  "Instructions  for  the  Government  of  the  Armies  of  the 
United  States  in  the  Field."  Higgins,  "The  Hague  Conferem  es." 
Halleck,  vol.  I,  chaps.  XV-XVI.  Holland,  "War  on  Land." 
Higgins,  "War  and  the  Private  Citizen." 

2.  Effect  of  War  as  to  Property — 

Baty,  "International  Law  in  South  Africa."  Benturch,  "War  and 
Property."  Moore's  "Digest,"  vol.  VII,  pars.  1106-8,  etc.  J. 
Brown  Scott,  "The  Hague  Conferences." 

» Stockton's  "Manual,"  p.  184. 


CHAPTER  XIX 
LAWS  OF  WAR.    LAWS  OF  LAND  WARFARE 

139.  Laws  of  War  in  General. — By  the  laws  of  war  we 
mean  not  only  the  conventional  rules  adopted  specifically  by 
most  of  the  civilized  nations  of  the  world  respecting  warfare 
but  also  the  customs  and  usages  which  are  recognized  as  being 
part  of  the  laws  of  nations,  but  which  have  not  become  in  ad- 
dition formulated  treaty  obligations  among  the  various  nations 
of  the  earth. 

The  early  writers  upon  the  laws  of  nations  from  the  first 
treated  of  the  laws  of  nations  as  applied  to  time  of  war  as  well 
as  to  the  time  of  peace.  As  a  matter  of  fact,  more  space  and 
time  were  given  to  the  period  of  war  in  early  treatises  not  only 
because  of  the  greater  frequency  of  wars  but  also  on  account 
of  inhumanities  and  suffering  that  resulted  from  wars  in  these 
earlier  periods.  The  title  of  Grotius's  great  work  was  "The 
Law  of  War  and  Peace." 

"The  whole  growth,"  says  Oppenheim,  "of  the  laws  and 
usages  of  war  is  determined  by  three  principles.  There  is, 
first,  the  principle  that  a  belligerent  should  be  justified  in  apply- 
ing any  amount  and  any  kind  of  force  which  is  necessary  for 
the  realization  of  the  purpose  of  war;  secondly,  the  principle 
of  humanity  at  work,  which  says  that  all  such  kinds  and  de- 
grees of  violence  as  are  not  necessary  for  the  overpowering  of 
the  opponent  should  not  be  permitted  to  a  belligerent;  and, 
thirdly  and  lastly,  there  are  at  work  the  principles  of  chivalry, 
which  arose  in  the  Middle  Ages  and  introduced  a  certain 
amount  of  fairness  in  offence  and  defence  and  a  certain  mu- 
tual respect."^ 

With  respect  to  the  laws  of  warfare,  it  may  be  said  that 

*  Oppenheim,  2ci  ed.,  vol.  II,  pp.  78,  79. 
309 


310  WAR-RELATIONS  OF  BELLIGERENTS 

though  there  is  a  differentiation  between  the  laws  of  land  and 
maritime  warfare,  to  which  will  be  added  those  of  aerial  war- 
fare, there  is,  however,  a  great  deal  that  is  common  and  applica- 
ble to  all  of  these  methods  of  warfare.  Not  only  is  this  the 
case  as  to  the  rules  of  warfare  which  are  not  matters  of  interna- 
tional convention  but  it  is  largely  applicable  to  the  rules  which 
have  become  specifically  international  obligations  by  treaty. 
In  examining  the  conventions  adopted  by  The  Hague  confer- 
ences and  the  Geneva  conventions,  it  will  be  found  that  The 
Hague  conventions  and  declarations  relative  to  the  commence- 
ment of  hostilities,  automatic  submarine  contact  mines,  the 
prohibition  of  the  discharge  of  projectiles  and  explosives  from 
balloons,  the  use  of  asphyxiating  gases,  and  in  relation  to  ex- 
panding bullets  are  common  to  all  methods  of  warfare,  while 
the  conventions  in  regard  to  the  amelioration  of  the  condition 
of  the  sick  and  wounded  are  applicable  to  all  warfare  as  cir- 
cumstances permit.  In  the  Convention  of  The  Hague  No. 
IV,  with  respect  to  the  laws  and  customs  of  war  on  land, 
of  1907,  though  drawn  up  specifically  for  land  warfare,  the  pre- 
liminary general  articles  are  applicable  to  all  warfare,  while 
the  chapters  which  follow,  so  far  as  they  treat  of  belligerents, 
prisoners  of  war,  the  sick  and  wounded,  hostilities,  spies,  flags 
of  truce,  capitulations,  armistices,  and  even  military  authority 
over  the  territory  of  the  hostile  state,  are  at  times,  in  part  or 
entirely,  applicable  to  warfare  generally.  This  is  extended  in 
case  of  naval  forces  acting  as  landing  forces  to  an  entire  similar- 
ity to  purely  military  or  land  forces  under  similar  conditions. 
On  the  other  hand,  in  fortified  ports  in  which  the  defences  and 
mines  are  controlled  by  the  military  forces,  there  are  certain 
rules  governing  an  attack  by  naval  forces  or  the  movements 
and  stay  of  belligerent  vessels  in  neutral  ports  which  would 
be  applicable  to  those  in  command  of  land  forces. 

140.  Modem  Development  of  the  Laws  of  War. — ^The  latter- 
day  development  of  the  laws  of  war  has  been  mainly  produced 
by  the  following  international  agreements  and  propositions: 


LAWS  OF  WAR  311 

1.  The  declaration  of  Paris  of  1856. 

2.  The  instructions  for  the  government  of  the  armies  of  the 
United  States  of  America  in  the  field,  of  1863,  by  Doctor  Lieber. 

3.  The  Geneva  convention  of  1864  for  the  ameUoration  of 
the  sick  and  wounded  in  warfare,  amplified  and  improved  by 
the  Geneva  convention  of  1906. 

4.  The  declaration  of  St.  Petersburg  of  1868. 

5.  The  Brussels  code  of  land  warfare  of  1874. 

6.  The  Hague  conventions  for  the  codification  of  the  laws  of 
land  warfare  of  1899  and  1907. 

7.  The  principles  of  the  Geneva  conventions  applied  to  mar- 
itime warfare  and  adopted  by  The  Hague  conference  of  1907. 

8.  The  declaration  of  London  of  1909. 

These  are  the  principal  rules  in  regard  to  the  laws  of  war, 
but  they  have  been  supplemented  by  various  other  conven- 
tions, declarations,  and  codes  of  more  or  less  importance,  which 
will  be  referred  to  in  the  treatment  of  the  special  subjects. 
Most  of  these  have  by  common  agreement  or  acceptance  be- 
come conventional  laws  of  war  and  do  not  admit  opposing 
methods  except,  perhaps,  in  cases  of  retaliation. 

In  the  preamble  to  the  declaration  of  St.  Petersburg  of  1868 
it  is  stated: 

"That  the  only  legitimate  object  which  states  should  en- 
deavor to  accomplish  during  war  is  to  weaken  the  military 
forces  of  the  enemy; 

"That  for  this  purpose  it  is  sufficient  to  disable  the  greatest 
possible  number  of  men; 

"That  this  object  would  be  exceeded  by  the  employment 
of  arms  which  uselessly  aggravate  the  sufferings  of  disabled 
men  or  render  their  death  inevitable; 

"That  the  employment  of  such  arms  would,  therefore,  be 
contrary  to  the  laws  of  humanity."^ 

Referring  to  the  first  of  the  clauses  quoted  above  from  the 
preamble  of  the  declaration  of  St.  Petersburg,  Westlake  says: 
•  HigijinB,  "The  Hague  Conferences,"  pp.  5,  6. 


312  WAR-RELATIONS  OF  BELLIGERENTS 

"Since  in  a  war  between  civilized  states  the  object  is  to 
break  down  the  resistance  of  the  enemy  government,  measures 
not  aimed  at  the  mihtary  forces  of  that  government,  or  the 
organization  and  wealth  which  support  them,  would  exceed 
the  object  and  be  inhuman.  And  the  advance  of  public  opin- 
ion has  even  condemned  all  action  in  war  the  connection  of 
which  with  the  weakening  of  the  enemy's  military  forces  is 
not  proximate.  Slaughter  of  non-combatants  or  carrying 
them  off  as  prisoners  and  the  devastation  of  territory  not 
necessary  for  covering  the  retreat  of  an  army  or  for  any  other 
directly  military  purpose,  but  intended  to  create  general  terror 
or  distress,  may,  indeed,  help  to  break  down  resistance  but  are 
universally  condemned."^ 

In  further  pursuance  of  this  subject  it  may  be  well  also  to 
quote  from  The  Hague  Convention  No.  IV,  concerning  the 
laws  and  customs  of  war  on  land,  which  ends  with  the  follow- 
ing paragraph: 

"  Until  a  more  complete  code  of  the  laws  of  war  can  be  issued, 
the  high  contracting  parties  think  it  expedient  to  declare  that, 
in  cases  not  included  in  the  regulations  adopted  by  them, 
populations  and  belligerents  remain  under  the  protection  and 
the  rule  of  the  principles  of  the  law  of  nations,  as  they  result 
from  the  usages  established  between  civilized  nations  from  the 
laws  of  humanity  and  the  requirements  of  the  public  con- 
science." ^ 

141.  Laws  of  War  and  the  Private  Citizen. — All  of  the 
above  is  true,  especially  when  private  citizens  abstain  by  word 
and  deed  from  taking  part  in  hostilities.  There  are,  however, 
some  important  exceptions,  as  when  invasion  should  occur  and 
during  military  occupation  the  private  citizen  suffers  in  many 
ways. 

As  Higgins  says:  "Men  and  squads  of  men  not  under  strict 
discipline,  not  forming  part  of  the  army  or  of  a  levy  en  masse 

1  Westlake,  "Int.  Law,"  2d  ed.,  vol.  II,  p.  58. 

«  Higgins,  "The  Hague  Conferences,"  pp.  209,  211. 


LAWS  OF  WAR  313 

at  the  approach  of  the  invaders,  who  commit  hostile  acts  with 
intermitting  returns  to  their  homes  and  vocations,  divesting 
themselves  of  the  character  or  appearance  of  soldiers,  have  no 
cause  for  complaint  of  an  infringement  of  the  laws  of  war  if 
when  they  are  caught  they  are  denied  belligerent  rights  and 
put  to  death."  ^ 

Private  citizens  have  been  granted  exceptional  treatment 
when  as  such  they  have  assisted  the  army  of  defence  of  a  be- 
sieged town.  This  was  the  case  in  the  historic  defence  of  Sara- 
gossa  in  Spain,  in  which  the  women  assisted  the  gunners,  and 
the  defence  of  Plevna  against  the  Russians  in  the  Russo- 
Turkish  War. 

In  regard  to  bombardment  and  the  siege  of  fortified  towns 
rules  vary.  No  notice  was  given  of  the  bombardment  of  Paris 
by  the  Germans,  though  a  deliberate  bombardment  should  be 
notified  by  the  requirements  of  humanity.  There  is  no  obli- 
gation imposed  either  by  the  conventional  rules  or  the  unwritten 
laws  of  war  in  case  of  siege  or  bombardment  to  allow  private 
citizens  or  women  and  children  to  leave  a  besieged  town,  even 
when  a  bombardment  is  about  to  begin. 

Article  18  of  General  Orders  No.  100  of  the  United  States 
army  (Lieber's  Code)  reads  as  follows:  "When  the  commander 
of  a  besieged  place  expels  the  non-combatants,  in  order  to  les- 
sen the  number  of  those  who  consume  his  stock  of  provisions, 
it  is  lawful,  though  an  extreme  measure,  to  drive  them  back, 
so  as  to  hasten  on  the  surrender." ^  This  should  be  eliminated 
from  any  code  authorized  by  the  United  States. 

luLcances  of  this  procedure  have  occurred  in  modern  times, 
but  generally  more  humane  treatment  prevails.  During  the 
Franco-German  War  the  Germans  insisted  upon  their  war 
rights  in  cases  of  sieges  almost  invariably.  Our  forces  before 
bombarding  Santiago  de  Cuba,  in  the  Spanish-American  War, 
gave  forty-eight  hours'  notice  and  allowed  the  exit  of  non- 

'  Higgins,  "War  and  the  Private  Citizen,"  p.  42. 

'  Davis,  "Elements  of  Int.  Law,"  Appendix  A,  p.  508. 


314  WAR-RELATIONS  OF  BELLIGEREN^rS 

combatants.  In  the  siege  of  Ladysmlth,  on  the  other  hand, 
non-combatants  were  not  allowed  to  leave  and  were  dependent 
for  their  supplies  upon  the  defenders  of  the  town.  They  were 
allowed  to  be  placed,  however,  in  a  camp  outside  of  the  zone  of 
fire. 

In  the  occupation  of  territory,  as  suggested  in  preceding 
pages,  the  private  citizen  suffers  in  so  many  ways  as  to  his 
person  and  property  that  it  can  be  truthfully  said  that  the  so- 
called  exemption  of  private  property  from  capture  or  seizure 
on  land  may  be  called  almost  nominal. 

Holland  says  "that  an  invading  army  may,  on  the  grounds 
of  military  necessity,  devastate  whole  tracts  of  country,  burn- 
ing dwellings  and  clearing  the  district  of  supplies.  In  this 
case  it  is,  however,  the  duty  of  the  invader  to  make  the  best 
provision  he  can  for  the  dispossessed  population."* 

Lieber's  instructions  of  General  Order  No.  100  in  Article 
15  says  that  "military  necessity  allows  of  all  destruction  of 
property  and  obstruction  of  the  ways  and  channels  of  traffic, 
travel,  or  communications  and  of  all  withholding  of  sustenance 
or  means  of  life  from  the  enemy."  Sheridan's  devastation  of 
the  Shenandoah  Valley  had  for  its  palliation  the  end  of  the 
raids  through  the  valley  northward  and  the  destruction  of  the 
granary  of  Lee's  armies. 

War  brings  at  times  martial  law  in  the  home  territory  such 
as  in  cases  of  civil  war,  of  invasion,  or  in  expectation  thereof, 
by  which  the  rights  and  privileges  of  the  citizens  and  domi- 
ciled aliens  of  the  home  country  are  considerably  curtailed. 
This  is  only  to  a  limited  extent  a  matter  of  international  law 
but  mainly  and  more  especially  of  the  municipal  law  of  the 
territory  placed  under  martial  law.  This  state  of  affairs  oc- 
curred in  our  Civil  War  and  has  occurred  in  British  self- 
governing  colonies  at  various  times. 

In  regard  to  hostages  in  general  Hall  says:  "Under  a  usage 
which  has  long  become  obligatory,  it  is  forbidden  to  take  their 
»  Holland,  "Laws  of  War,"  pp.  13,  14. 


LAWS  OF  WAR  315 

[hostages']  lives  except  during  an  attempt  to  escape,  and  they 
must  be  treated  in  all  respects  as  prisoners  of  war,  except  that 
escape  may  be  guarded  against  by  closer  confinement."' 

142.  The  Laws  of  War  on  Land.  Belligerents. — The  in- 
strument which  contains  the  laws  and  customs  of  war  on  land 
in  the  most  authoritative  manner  is  that  adopted  by  the  first 
Hague  conference  of  1899,  as  amended  by  the  second  conference 
of  1907.  Quotations  have  already  been  made  from  some  of 
the  general  articles  which  precede  the  regulations  as  codified. 
Practically  all  of  the  civilized  states  of  the  world,  including 
the  United  States,  have  signed  and  ratified  this  convention, 
which  is  No.  IV,  and  the  reservations  have  been  few,  there 
being  none  made  by  the  United  States  in  the  ratification  made 
by  the  United  States  Senate  on  March  10,  1908.  The  pro- 
visions contained  in  the  annexed  regulations  are  only  binding 
between  the  contracting  parties  and  only  if  all  the  belligerents 
are  parties  to  the  convention.  A  belligerent  state  violating 
the  provisions  of  the  regulations  shall,  if  the  case  demands  it,  be 
liable  to  make  compensation.  It  shall  also  be  responsible  for 
all  acts  committed  by  persons  forming  part  of  its  armed  forces. 

In  addition  to  what  has  previously  been  quoted  from  the 
preamble  of  the  convention.  Article  I  of  the  convention  re- 
quires that  the  contracting  parties  will  issue  to  their  armed 
land  forces  instructions  which  shall  be  in  conformity  with  the 
regulations  that  are  annexed  to  the  convention,  known  as 
"Regulations  respecting  the  Laws  and  Customs  of  War  on 
Land.' 

The  first  section  of  the  regulations  treats  of  the  subject  of 
belligerents,  and  the  first  chapter  of  that  section  treats  of  the 
qualifications  of  belligerents.  In  the  first  article  of  the  chap- 
ter it  is  stated  that  the  laws,  rights,  and  duties  of  war  apply 
not  only  to  armies  but  also  to  militia  and  volunteer  corps  ful- 
filling conditions  that  are  named.  This  inclusion  of  militia 
and  volunteer  corps  with  the  regular  armies  of  a  state  is  a 
» Hall,  6tb  ed.,  pp.  411,  412.    Bluntschli,  sec.  600. 


316  WAR-RELATIONS  OF  BELLIGERENTS 

recognition  of  the  change  which  has  occurred  since  the  time 
when  professional  soldiers  were  alone  considered  to  be  entitled 
to  fight  for  the  state.  As  late  as  the  Franco-German  War  of 
1870,  the  Prussian  commander-in-chief  required  that  prisoners, 
in  order  to  be  considered  as  prisoners  of  war,  were  to  prove 
that  they  were  "  called  out  and  borne  on  the  rolls  of  a  military 
organized  corps  by  a  legal  order  personally  addressed."^ 

The  conditions  required  by  this  article  are  that  the  armed 
forces  are  to  have  at  their  head  a  person  responsible  for  his 
subordinates;  to  have  a  fixed  distinctive  emblem  recognizable 
at  a  distance;  to  carry  arms  openly;  and  to  conduct  their 
operations  in  accordance  with  the  laws  and  customs  of  war. 
In  countries  where  militia  or  volunteer  corps  either  constitute 
the  army  or  form  part  of  it  they  are  to  be  included  under  the 
denomination  of  army.^ 

Provision  is  made  in  Article  17  of  the  convention  for  an  up- 
rising of  a  mass  of  the  population  for  the  defence  of  their  coun- 
try or  territory,  as  follows: 

"The  population  of  a  territory  which  has  not  been  occupied, 
who,  on  the  enemy's  approach,  spontaneously  take  up  arms  to 
resist  the  invading  troops  without  having  time  to  organize 
themselves  in  accordance  with  Article  I,  shall  be  regarded  as 
belligerents  if  they  carry  arms  openly  and  respect  the  laws  and 
customs  of  war." 

A  definition  of  the  composition  of  the  armed  forces  of  the 
belligerents  is  further  made  in  Article  III  of  the  convention 
under  discussion  by  providing  that  it  may  consist  of  combatants 
and  non-combatants,  both,  in  case  of  capture,  having  a  right 
to  be  treated  as  prisoners  of  war. 

It  is  generally  conceded  that  certain  non-combatants  either 
accompanying  an  army  or  elsewhere,  from  their  position  and 
importance,  can  be  made  prisoners  of  war.  These  are  the 
ruler  or  monarch  and  members  of  the  reigning  family  of  the 

»  Hall,  6th  ed.,  p.  513. 

"Art.  I,  Convention  IV;  Higgins,  "Hague  Conferences,"  etc. 


LAWS  OF  WAR  317 

state,  the  chief  officers  of  the  enemy's  government,  and  any 
person  who  for  certain  reasons  may  be  specially  or  generally  of 
importance  to  an  enemy.  There  may  also  be  included  in  the 
term  non-combatants  persons  connected  with  the  supply  and 
transport  services,  guides,  balloonists,  agents,  contractors,  and 
others  who  assist  in  its  movement,  equipment,  and  maintenance. 

By  Article  9  of  the  Geneva  convention  of  1906  the  personnel 
engaged  exclusively  in  the  collection,  transport,  and  treatment 
of  the  wounded  and  sick,  as  well  as  in  the  administration  of 
medical  units  and  establishments,  and  the  chaplains  attached 
to  armies  shall  be  respected  and  protected  under  all  circum- 
stances. If  they  fall  into  the  hands  of  the  enemy  they  shall 
not  be  treated  as  prisoners  of  war.  These  provisions  apply  to 
the  guard  of  the  medical  units  and  other  establishments  fur- 
nished with  an  authority  in  due  form. 

The  use  of  savage  or  semibarbarous  troops  in  modern  war- 
fare is  subject  in  a  general  sense  to  the  conditions  required  by 
the  rules  relating  to  lawful  belligerents.  This  applies  also  as 
to  guerilla,  irregular,  or  other  detached  bodies  of  men. 

During  the  Russo-Japanese  War  Admiral  Alexieff  issued  an 
order  offering  special  inducements  to  convicts  from  the  Island 
of  Sakhalin  to  enlist  in  the  Russian  army.  Though  this  cannot 
be  regarded  as  a  positive  violation  of  the  law  of  nations,  there 
is  something  peculiarly  revolting  to  modern  conceptions  of 
humanity  in  the  employment  of  criminals  for  purposes  of 
warfare.  ^ 

143.  Prisoners  of  War. — The  instructions  for  the  govern- 
ment of  the  armies  of  the  United  States  by  Doctor  Francis 
Lieber  and  issued  by  the  adjutant-general's  office  in  1863  as 
General  Order  No.  100,  and  previously  referred  to,  may  be 
said  to  be  still  in  force  in  the  United  States  army,  and  were  again 
issued  without  modification  for  the  government  of  the  United 
States  armies  in  1898.  They  were  issued  originally  for  a  civil 
war  and  do  not  fully  represent  either  the  most  modern  ideas 
'  Hershey,  "Essentials,"  note,  p.  375. 


318  WAR-RELATIONS  OF  BELLIGERENTS 

upon  the  subject  of  warfare  or  the  complete  state  of  a  foreign 
war.  As  the  United  States  has  adopted  the  convention  of  the 
second  Hague  conference  of  1907  as  a  solemn  treaty,  when  the 
two  regulations  come  in  conflict  it  may  be  said  that  according 
to  usage  and  law  the  latter  regulations  control. 

The  definition  in  the  regulations  of  General  Order  No.  100 
of  prisoners  is  comprehensive  and  will  be  given  as  one  pertain- 
ing at  the  present  time.    It  reads  as  follows: 

"A  prisoner  of  war  is  a  public  enemy  armed  or  attached  to 
the  hostile  army  for  active  aid,  who  has  fallen  into  the  hands 
of  the  captor,  either  fighting  or  wounded,  on  the  field  or  in  the 
hospital,  by  individual  surrender  or  by  capitulation. 

"All  soldiers  of  whatever  species  of  arms;  all  men  who  be- 
long to  the  rising  en  masse  of  the  hostile  country;  all  those  who 
are  attached  to  the  army  for  its  eflficiency  and  promote  directly 
the  object  of  the  war,  except  such  as  are  hereinafter  provided 
for;  all  disabled  men  or  officers  in  the  field  or  elsewhere,  if 
captured;  all  enemies  who  have  thrown  away  their  arms  and 
ask  for  quarter  are  prisoners  of  war  and  as  such  exposed  to  the 
inconveniences  as  well  as  entitled  to  the  privileges  of  a  prisoner 
of  war." 

Chapter  II  of  The  Hague  convention  on  the  laws  and  customs 
of  war  is  devoted  to  the  subject  of  prisoners  of  war  and  the 
various  articles  of  the  chapter  will  be  given.    They  read  as 
'  follows,  commencing  with  Article  4: 

"  Prisoners  of  war  are  in  the  power  of  the  hostile  government 
but  not  in  that  of  the  individuals  or  corps  who  captured  them. 

"They  must  be  humanely  treated. 

"  All  their  personal  belongings,  except  arms,  horses,  and  mili- 
tary papers,  remain  their  property." 

"The  public  property,  arms,  equipments,  and  any  articles 
susceptible  of  military  use,  found  in  the  possession  of  a  prisoner 
at  the  time  of  his  capture,"  says  General  Davis,  "become  the 
property  of  the  capturing  state.  His  private  property  is  re- 
spected and  secured  to  him  by  the  usages  of  war."^ 
»  Daris,  "Elements  of  Int.  Law,"  3d  ed.,  p.  314. 


LAWS  OF  WAR  319 

Article  5.  "Prisoners  of  war  may  be  interned  at  a  town, 
fortress,  camp,  or  any  other  locality,  and  are  bound  not  to  go 
beyond  certain  fixed  limits;  but  they  can  only  be  confined  as 
an  indispensable  measure  of  safety  and  only  while  the  circum- 
stances which  necessitate  the  measure  continue  to  exist." 

Prisoners  of  war  are  generally  sent  to  the  country  of  the 
captor  at  a  distance  from  the  zone  of  military  operations. 
Their  confinement  should  consist  only  of  such  detention  as 
will  prevent  their  escape. 

Formerly  a  more  severe  practice  obtained.  During  the  wars 
of  the  American  and  French  Revolutions  prisoners  of  war  were 
often  confined  in  numbers  on  board  prison  ships  and  were  in 
common  jails.  At  earlier  periods  they  were  treated  with 
greater  harshness  by  being  sent  to  the  galleys  and  kept  there 
after  the  termination  of  war.^  Among  the  earlier  instruments 
providing  for  a  more  humane  treatment  of  prisoners  of  war  was 
the  treaty  between  the  United  States  and  Prussia,  in  1785,  in 
which,  in  Article  24,  will  be  found  formulated  the  most  humane 
stipulations  of  the  times. 

Article  6  of  The  Hague  convention  reads: 

"The  state  may  utilize  the  labor  of  prisoners  of  war,  other 
than  oflBcers,  according  to  their  rank  and  capacities.  Their 
tasks  shall  not  be  excessive  and  shall  have  nothing  to  do  with 
the  operations  of  the  war. 

"  Prisoners  may  be  authorized  to  work  for  the  public  service, 
for  private  persons  or  on  their  own  account. 

"Wo^-k  done  for  the  state  shall  be  paid  for  according  to  the 
tariffs  in  force  for  soldiers  of  the  national  army  employed  on 
similar  tasks  or,  if  there  are  no  such  tariffs  in  force,  at  rates 
proportional  to  the  work  executed. 

"When  the  work  is  for  other  branches  of  the  public  service 
or  for  private  persons  the  conditions  shall  be  settled  in  agree- 
ment with  the  military  authorities. 

"The  earnings  of  the  prisoners  shall  go  toward  improving 
1  Hall,  6th  ed.,  note,  p.  403. 


320  WAR-RELATIONS  OF  BELLIGERENTS 

their  position,  and  the  balance  shall  be  paid  them  at  the  time 
of  their  release,  after  deducting  the  cost  of  their  mainte- 
nance." 

Article  7.  "The  government  into  whose  hands  prisoners  of 
war  have  fallen  is  bound  to  maintain  them. 

"Failing  a  special  agreement  between  the  belligerents,  pris- 
oners of  war  shall  be  treated,  as  regards  food,  quarters,  and 
clothing,  on  the  same  footing  as  the  troops  of  the  government 
which  has  captured  them." 

Article  8.  "Prisoners  of  war  shall  be  subject  to  the  laws, 
regulations,  and  orders  in  force  in  the  army  of  the  state  into 
whose  hands  they  have  fallen. 

"Any  act  of  insubordination  warrants  the  adoption,  as  re- 
gards them,  of  such  measures  of  severity  as  may  be  necessary. 

"Escaped  prisoners,  recaptured  before  they  have  succeeded 
in  rejoining  their  army  or  before  quitting  the  territory  occu- 
pied by  the  army  that  captured  them,  are  liable  to  disciplinary 
punishment. 

"  Prisoners  who,  after  succeeding  in  escaping,  are  again  taken 
prisoners,  are  not  liable  to  any  punishment  for  their  previous 
flight."  In  regard  to  attempts  to  escape,  General  Davis,  in  his 
work  on  "  International  Law,"  says  that  "a  prisoner  of  war  in 
attempting  to  escape,  does  not  commit  a  crime.  It  is  his  duty 
to  escape  if  a  favorable  opportunity  presents  itself.  It  is  equally 
the  duty  of  his  captor  to  prevent  his  escape,  and  he  is  justified 
in  resorting  to  any  measures,  not  punitive  in  character,  that  will 
best  secure  that  end.  If  recaptured,  his  confinement  may  be 
made  more  rigorous  than  before."  ^ 

Article  9  of  the  Convention  IV  says: 

"Every  prisoner  of  war,  if  questioned,  is  bound  to  declare 
his  true  name  and  rank,  and  if  he  disregards  this  rule  he  is 
liable  to  a  curtailment  of  the  advantages  accorded  to  the  pris- 
oners of  war  of  his  class." 

Article  10.  "  Prisoners  of  war  may  be  set  at  liberty  on  parole 
^  Davis,  "Elements  of  Int.  Law,"  3d  ed.,  p.  315. 


LAWS  OF  WAR  321 

if  the  laws  of  their  country  authorize  it,  and  in  such  a  case 
they  are  bound  on  their  personal  honor  scrupulously  to  fulfil, 
both  as  regards  their  own  government  and  the  government  by 
which  they  were  made  prisoners,  the  engagements  they  have 
contracted. 

"In  such  cases,  their  own  government  is  bound  not  to  re- 
quire of  nor  to  accept  from  them  any  service  incompatible 
with  the  parole  given." 

Article  11.  "A  prisoner  of  war  cannot  be  forced  to  accept 
his  liberty  on  parole;  similarly  the  hostile  government  is  not 
obliged  to  assent  to  the  prisoner's  request  to  be  set  at  liberty 
on  parole." 

Article  12.  "Any  prisoner  of  war  who  is  liberated  on  parole 
and  recaptured  bearing  arms  against  the  government  to  which 
he  had  pledged  his  honor  or  against  the  allies  of  that  govern- 
ment forfeits  his  right  to  be  treated  as  a  prisoner  of  war  and 
can  be  brought  before  the  courts." 

The  punishment  that  courts  can  award  is  not  specified  in 
the  article  just  given,  but  the  usages  of  international  law  per- 
mit the  sentence  of  death  by  court  martial. 

Paroles  are  ordinarily  received  only  from  officers  and,  when 
necessary,  are  given  by  officers  for  the  enlisted  men  of  their 
commands.  They  are  accepted  from  enlisted  men  only  in  ex- 
ceptional cases.  Paroles  are  given  by  officers  to  secure  greater 
freedom  of  movement  or  to  obtain  special  privileges  while  held 
by  the  enemy  as  prisoners  of  war.^  As  to  the  services  of  a 
parolea  officer  with  respect  to  his  own  government,  it  Is  under- 
stood that  he  is  debarred  from  active  service  in  the  field  against 
the  enemy  but  that  he  can  perform  administrative  or  other 
services  beyond  the  area  of  active  operations.  During  our 
Civil  War  paroled  officers  were  permitted  to  be  employed  as 
instructors  at  the  Naval  Academy.  The  parole  Is  terminated 
by  exchange  or  by  the  end  of  the  war. 

Article  13  reads  that: 

1  Davis,  "Elements  of  Int.  Law,"  3d  ed.,  p.  318. 


322  WAR-RELATIONS  OF  BELLIGERENTS 

"Individuals  who  follow  an  army  without  directly  belonging 
to  it,  such  as  newspaper  correspondents  and  reporters,  sutlers, 
contractors,  who  fall  into  the  enemy's  hands  and  whom  the 
latter  think  fit  to  detain,  have  a  right  to  be  treated  as  prisoners 
of  war,  provided  they  can  produce  a  certificate  from  the  mili- 
tary authorities  of  the  army  they  were  accompanying." 

In  the  article  just  given,  mentioned  among  individuals  who 
may  fall  into  the  hands  of  the  belligerents  may  be  military  or 
naval  attaches  accompanying  the  forces  in  the  field.  As  they 
have  not  enemy  character,  they  cannot  be  placed  in  the  status 
of  prisoners  of  war;  but,  as  General  Davis  says,  "they  may  be 
detained  by  the  belligerent  into  whose  hands  they  fall  if  their 
release  immediately  after  capture  would  lead  to  a  disclosure  of 
his  plans  or  convey  to  the  enemy  any  information  as  to  his 
strength,  positions,  or  movements."  ^ 

The  exchange  of  prisoners  of  war  is  made  in  accordance  with 
agreements  between  the  respective  belligerent  governments  or 
authorized  oflBcials.  These  agreements  are  generally  termed 
cartels. 

"As  belligerents,"  as  Hall  says,  "have  a  right  to  keep  their 
prisoners  till  the  end  of  the  war,  exchange  is  a  purely  voluntary 
arrangement  made  by  each  party  for  his  own  convenience;  it 
may,  therefore,  be  refused  by  either,  but,  if  accepted,  it  must 
be  evidently  based  on  the  principle  that  equal  values  be  given 
and  received.  .  .  .  But  the  principle  of  equality  is  not  fully 
satisfied  unless  the  prisoners  handed  over  on  one  side  are  as 
efficient  as  those  which  are  received  from  the  other;  if  an 
officer  is  worth  several  privates,  so  also  a  disciplined  soldier  is 
worth  more  than  a  man  destitute  of  training  and  a  healthy 
man  more  than  an  invalid.  A  government,  therefore,  in  pro- 
posing or  carrying  out  an  exchange  is  bound  not  to  attempt 
to  foist  upon  its  enemy  prisoners  of  lower  value  than  those 
which  it  obtains  from  him. 

"  Some  controversies  have  occurred  which  illustrate  the  bear- 
»  Davis,  "Elements  of  Int.  Law,"  3d  ed.,  p.  21L 


LAWS  OF  WAR  323 

ing  of  this  rule.  In  1777  an  agreement  for  an  exchange  of 
prisoners  was  made  between  General  Washington  and  Sir 
William  Howe,  in  which  it  was  merely  stipulated  that  'officers 
should  be  given  for  officers  of  equal  rank,  soldier  for  soldier, 
citizen  for  citizen.'  When  the  agreement  came  to  be  carried 
out  the  Americans  objected  that  a  great  proportion  of  those 
sent  out  by  the  English  were  not  fit  subjects  of  exchange  when 
released  and  were  made  so  by  the  severity  of  their  treatment 
and  confinement,  and  therefore  a  deduction  should  be  made 
from  the  list  to  the  extent  of  the  number  of  non-effectives. 
Sir  WilHam  Howe,  while  denying  the  alleged  fact  of  severe  treat- 
ment and  referring  the  bad  state  of  health  of  the  prisoners  to 
the  sickness  which  is  said  to  have  prevailed  in  the  American 
army  at  the  time,  fully  granted  that  able  men  are  not  to  be 
required  by  the  party  who,  contrary  to  the  laws  of  humanity, 
through  design,  or  even  neglect  of  reasonable  and  practicable 
care,  shall  have  caused  the  debility  of  the  prisoners  he  shall 
have  to  offer  in  exchange."  ^ 

Bureaus  of  information,  relief  societies,  etc.,  are  provided  in 
The  Hague  convention  in  connection  with  prisoners  of  war,  so 
that  knowledge  of  their  existence  and  state  and  measures  for 
the  alleviation  of  their  hardships  can  be  officially  and  privately 
taken.  Provisions  for  allowances  of  money,  for  mail  communi- 
cation, and  the  exercise  of  their  religion  are  also  found  in  the 
articles  upon  these  subjects  extending  in  numbers  from  Article 
14  to  Article  20. 

Article  20  reads  that  "after  the  conclusion  of  peace,  the  re- 
patriation of  prisoners  of  war  shall  take  place  as  speedily  as 
possible."  Holland  says  that  "some  delays  must,  of  course, 
occur  on  account  of  (1)  insufficiency  of  transport,  (2)  obvious 
risk  in  at  once  restoring  to  the  vanquished  power  the  troops  of 
which  it  has  been  deprived,  (3)  some  prisoners  being  under 
punishment  for  offences  committed  during  their  imprison- 
ment." 2 

'  Hall,  6th  ed.,  pp.  408,  409.  «  Holland,  "Laws  of  War,"  p.  27. 


324  WAR-RELATIONS  OF  BELLIGERENTS 

144.  Hostilities. — The  obligations  of  belligerents  with  re- 
gard to  the  sick  and  wounded  are  governed  by  the  Geneva 
convention  of  1906,  which  will  be  found  in  Higgins,  "Hague 
Conferences."  It  will  be  referred  to  in  the  text  from  time  to 
time.  The  article  in  the  convention  of  The  Hague  under  dis- 
cussion, referring  to  the  subject  of  the  sick  and  wounded,  is 
Article  21  of  Chapter  HI  of  Section  I,  treating  of  belliger- 
ents. Section  H  of  the  convention  treats  of  hostilities,  begin- 
ning with  Article  22,  which  states  in  general  terms  that  the 
right  of  belligerents  to  adopt  means  of  injuring  the  enemy  is 
not  unlimited.  The  next  article,  23,  specifies  matters  that  are 
prohibited,  such  as  the  employment  of  poisons,  the  killing  or 
wounding  of  the  surrendered,  the  declaration  of  no  quarter, 
the  use  of  arms  causing  unnecessary  suffering,  the  improper 
use  of  a  flag  of  truce,  of  the  national  flag,  the  uniform  of  the 
enemy  or  of  the  Geneva  cross,  and  a  wilful  and  unnecessary 
destruction  of  the  enemy's  property. 

Under  the  above  rule  that  article  of  General  Order  No.  100 
which  permits  a  commander  to  direct  his  troops  to  give  no 
quarter,  in  great  straits,  when  his  own  situation  makes  it  im- 
possible to  cumber  himself  with  prisoners  seems  to  be  either  an 
impossible  danger  or  one  that  can  be  avoided  by  the  release 
or  disarmament  of  the  overpowered  enemy.  It  should  be  con- 
sidered as  obsolete. 

The  last  clause  of  Article  23,  lettered  h,  has  caused  consid- 
erable discussion  so  far  as  its  first  paragraph  is  concerned. 
This  reads  that  it  is  forbidden  "to  declare  extinguished,  sus- 
pended, or  unenforceable  in  a  court  of  law  the  rights  and  rights 
of  action  of  the  nationals  of  the  adverse  party."  This,  if  a 
general  principle,  seems  out  of  place  here.  Professor  Holland, 
while  admitting  as  possible  that  the  paragraph  is  intended 
only  for  the  guidance  of  an  invading  commander,  adds  that  "  if, 
as  would  rather  appear,  it  Is  of  general  application,  besides 
being  quite  out  of  place  where  it  stands.  It  is  so  revolutionary 
of  the  doctrine  which  denies  to  an  enemy  any  persona  standi 


LAWS  OF  WAR  325 

in  judicio,  that,  although  contained  in  the  ratification  by  the 
United  States  and  the  signature  by  Great  Britain,  it  can  hardly, 
till  its  policy  has  been  seriously  discussed,  be  treated  as  a  rule 
of  international  law."^ 

The  last  paragraph  of  clause  h  reads  that  "a  belligerent  is 
likewise  forbidden  to  compel  the  nationals  of  the  adverse  party 
to  take  part  in  the  operations  of  war  directed  against  their 
country,  even  when  they  have  been  in  his  service  before  the 
commencement  of  the  war." 

The  next  article  states  that  ruses  of  war  and  the  emploj-ment 
of  methods  necessary  to  obtain  information  about  the  enemy 
and  the  country  are  considered  lawful. 

Article  25  states  that  "the  attack  or  bombardment  by  any 
means  whatever  of  towns,  villages,  habitations,  or  buildings 
which  are  not  defended  is  prohibited."  In  view  of  the  pos- 
sibility of  the  expiration  of  the  declaration  prohibiting  the 
dropping  of  projectiles  from  the  sky  at  the  end  of  the  next 
Hague  conference  without  renewal,  there  will  be  a  necessity 
for  a  closer  definition  of  this  prohibition.  It  reads  now  as  a 
prohibition  of  any  attack  from  the  sky  upon  buildings  of  them- 
selves undefended  even  within  a  town  of  itself  defended  with 
external  fortifications.  This  reading  has  certainly  not  been 
followed  out  in  recent  wars. 

Westlake,  in  referring  to  this  article,  points  out  that,  in  his 
belief,  as  this  code  only  deals  with  war  between  civilized 
states  it  cannot  be  quoted  against  the  attack  or  bombardment 
of  a  town  or  village  of  savages  not  having  a  government 
suflBcient  to  be  the  proper  object  of  hostilities.  "  Such  an  opera- 
tion," he  goes  on  to  say,  "may  be  an  example  of  necessary 
punitive  expeditions."  ^ 

Articles  26  and  27  of  The  Hague  convention  provide  that 
the  commander  of  an  attacking  force  before  commencing  a 
bombardment,  except  in  the  case  of  an  assault,  should  do  all 

»  Holland,  "LawB  of  War  on  Land,"  1908,  p.  44. 
•  Westlake,  "Int.  Law,"  2d  cd.,  p.  87. 


326  WAR-RELATIONS  OF  BELLIGERENTS 

that  he  can  to  warn  the  authorities  and  that  all  necessary  steps 
should  be  taken  to  spare,  as  far  as  possible,  edifices  devoted  to 
religion,  art,  science,  or  charity,  historic  monuments,  hospitals 
and  places  where  the  sick  and  wounded  are  collected,  provided 
they  are  not  used  at  the  same  time  for  military  purposes. 

The  besieged  ought  to  indicate  these  places  by  some  par- 
ticular and  visible  signs,  which  should  be  notified  previously  to 
the  besiegers.^ 

Article  28  prohibits  the  pillage  of  a  town  or  place,  even  when 
taken  by  assault. 

Pillage  in  a  general  sense  can  be  defined  as  the  forcible  tak- 
ing of  private  property  without  authority  in  an  enemy's  coun- 
try or  in  a  captured  place.  It  has  been  seen  and  will  be  shown 
later  that  the  laws  of  war  on  land  give  certain  methods  by 
which  private  property  can  be  taken  in  war,  under  orders  of  the 
commander  of  a  force.  "If  it  be  taken  any  other  way,"  says 
General  Davis,  "  such  taking  constitutes  pillage  and  is  punish- 
able accordingly.  There  can  be  no  higher  test  of  discipline  in 
a  command  than  is  shown  by  the  manner  in  which  the  private 
property  of  an  enemy  is  treated  within  its  sphere  of  operations. 
If  such  property  is  respected,  if  acts  of  pillage  are  strictly  re- 
pressed and  severely  punished,  the  discipline  is  good.  If  prop- 
erty and  life  are  unsafe  in  its  vicinity,  if  irregular  seizures  are 
permitted,  if  orchards  and  fields  are  devastated,  discipline 
worthy  of  the  name  cannot  be  said  to  exist."  " 

145.  Spies. — In  The  Hague  convention  under  consideration 
a  spy  is  defined  as  a  person  who,  acting  clandestinely  or  on  false 
pretences,  obtains  or  seeks  to  obtain  information  in  the  zone 
of  operations  of  a  belligerent,  with  the  intention  of  communi- 
cating it  to  the  hostile  party.  Article  29  goes  on  to  say: 
"  Soldiers  not  in  disguise  who  have  penetrated  into  the  zone  of 
operations  of  a  hostile  army  to  obtain  information  are  not  con- 
sidered spies.     Similarly,  the  following  are  not  considered  spies: 

*  Higgins,  "Hague  Conferences,"  p.  237. 

*  Davis,  "Elements  of  Int.  Law,"  3d  ed.,  p.  323. 


LAWS  OF  WAR  327 

soldiers  or  civilians  carrying  out  their  mission  openly,  charged 
with  the  delivery  of  despatches  destined  either  for  their  own 
army  or  for  that  of  the  enemy.  To  this  class  belong,  likewise, 
individuals  sent  in  balloons  to  deliver  despatches  and  generally 
to  maintain  communications  between  the  various  parts  of  an 
army  or  a  territory." 

Article  30  reads  that:  "A  spy  taken  in  the  act  cannot  be 
punished  without  previous  trial."  The  trial  will  be  by  court 
martial,  and  the  extreme  penalty  is  death. 

Article  31  states  that  "A  spy,  however,  who  after  rejoining 
the  army  to  which  he  belongs  is  subsequently  captured  by 
the  enemy  is  treated  as  a  prisoner  of  war  and  incurs  no  re- 
sponsibility for  his  previous  acts  of  espionage."* 

"Service  as  a  spy,"  says  General  Davis,  "is  voluntary  and 
cannot  be  compelled.  A  state  cannot  require  an  individual  in 
its  military  service  to  act  as  a  spy.  If  it  permits  or  authorizes 
a  person  in  its  military  or  navp.l  service  to  act  in  that  capacity, 
the  fact  of  his  being  in  such  service  will  not  screen  him  from 
punishment  should  he  be  apprehended  by  the  enemy;  nor 
will  retaliation  be  justifiable  on  the  part  of  the  belligerent  who 
so  employs  persons  in  his  military  service."^ 

146.  Flags  of  Truce.— Articles  32,  33,  and  34  of  The  Hague 
convention  say  that: 

"A  person  is  considered  as  the  bearer  of  a  flag  of  truce  who 
is  authorized  by  one  of  the  belligerents  to  enter  into  communi- 
cation with  the  other  and  who  comes  with  a  white  flag.  He  has 
a  right  10  inviolability,  as  well  as  the  trumpeter,  bugler,  or 
drummer,  the  flag-bearer,  and  the  interpreter  who  may  accom- 
pany him. 

"The  commander  to  whom  a  bearer  of  a  flag  of  truce  is 
sent  is  not  obliged  to  receive  him  in  all  circumstances. 

"  He  can  take  all  steps  necessary  to  prevent  the  bearer  taking 
advantage  of  his  mission  to  obtain  information. 

1  Higgins,  "Hague  Conferences,"  p.  239. 
*  Davia,  "Elcmeots  of  Int.  Law,"  p.  321. 


328  WAR-RELATIONS  OF  BELLIGERENTS 

"In  case  of  abuse,  he  has  the  right  to  detain  the  bearer 
temporarily. 

"The  bearer  of  a  flag  of  truce  loses  his  right  of  inviolability 
if  it  is  proved  in  a  clear  and  incontestable  manner  that  he  has 
taken  advantage  of  his  privileged  position  to  instigate  or  com- 
mit an  act  of  treachery." 

147.  Capitulations. — By  capitulations  is  meant  the  agree- 
ments, with  the  accompanying  details,  between  the  command- 
ing officers  of  opposing  forces,  by  which  a  surrender  is  regulated 
either  ashore  or  afloat.  So  far  as  capitulations  are  of  a  military 
nature  alone,  officers  in  command  acting  singly  are  regarded 
as  competent  to  make  them;  but  if  they  include  political  or 
other  matters  they  require  the  ratification  by  the  general 
government  or  the  commander-in-chief  of  the  operations  in 
the  field,  if  he  is  so  authorized.  If  the  commander  of  the  forces 
receiving  the  surrender  is  limited  in  this  manner  in  his  author- 
ity, it  is  his  duty  to  so  notify  the  enemy.  Article  35  of  The 
Hague  convention  reads  as  follows: 

"Capitulations  agreed  on  between  the  contracting  parties 
must  be  in  accordance  with  the  rules  of  military  honor. 

"When  once  settled,  they  must  be  scrupulously  observed 
by  both  the  parties." 

148.  Armistices. — ^The  articles  bearing  upon  this  subject 
are  as  follows: 

"  Article  36.  An  armistice  suspends  military  operations  by 
mutual  agreement  between  the  belligerent  parties.  If  its 
duration  is  not  fixed,  the  belligerent  parties  can  resume  opera- 
tions at  any  time,  provided  always  the  enemy  is  warned  within 
the  time  agreed  on  by  the  terms  of  the  armistice. 

"Article  37.  An  armistice  may  be  general  or  local.  The 
first  suspends  all  military  operations  of  the  belligerent  states; 
the  second,  only  those  between  certain  fractions  of  the  bellig- 
erent armies  and  in  a  fixed  radius. 

"  Article  38.  An  armistice  must  be  notified  officially  and  in 
good  time  to  the  competent  authorities  and  the  troops.    Hos- 


LAWS  OF  WAR  329 

tilitles  are  suspended  immediately  after  the  notification  or  at 
a  fixed  date. 

"  Article  39.  It  is  for  the  contracting  parties  to  settle  in  the 
clauses  of  the  armistice  what  may  be  the  relations  on  the 
theatre  of  war  with  and  between  the  populations. 

"Article  40.  Any  serious  violation  of  the  armistice  by  one 
of  the  parties  gives  the  other  party  the  right  to  denounce  it 
and  even  in  case  of  urgency  to  recommence  hostilities  at  once. 

"Article  41.  A  violation  of  the  terms  of  the  armistice  by 
private  individuals  acting  on  their  own  initiation  only  confers 
the  right  of  demanding  the  punishment  of  the  offenders  and, 
if  necessary,  indemnity  for  the  losses  sustained.'* 

General  armistices  include  the  entire  area  of  military  and 
naval  operations.  They  are  made,  as  a  rule,  by  the  govern- 
ments concerned  or  by  their  authority  as  preludes  to  nego- 
tiations for  peace.  Being  so  comprehensive  in  character,  gen- 
eral armistices  are  drawn  up  with  considerable  detail  and 
stipulations.  They  are  binding  upon  individuals  and  forces 
from  the  date  of  notification,  but,  as  in  case  of  naval  opera- 
tions this  may  be  delayed,  special  arrangements  being  made 
in  such  cases  in  regard  to  the  capture  of  prizes,  etc. 

Section  III  and  Articles  42  to  56,  inclusive,  of  The  Hague 
convention  relate  to  military  authority  over  the  territory  of 
the  hostile  state  and  will  be  discussed  later  under  the  head  of 
military  occupation. 

Section  FV,  including  Articles  57  to  60,  inclusive,  which  re- 
lates to  the  internment  of  belligerents  and  the  care  of  the 
wounded  in  neutral  countries,  is  discussed  later,  also  under  the 
head  of  relations  between  belligerents  and  neutrals. 

149.  Reprisals  or  Retaliation. — This  subject  was  not 
treated  upon  by  The  Hague  convention  on  the  laws  and  cus- 
toms of  war  on  land.  As  Holland  says:  "The  permissibility 
of  such  measures  is  a  painful  exception  to  the  rule  that  a  bellig- 
erent must  observe  the  laws  of  war,  even  without  reciprocity  on 
the  part  of  the  enemy.     Reprisals  must  be  sparingly  exercised. 


330  WAR-RELATIONS  OF  BELLIGERENTS 

« 

and  then  not  by  way  of  vengeance  but  solely  in  order  to  pre- 
vent a  repetition  of  the  offence  complained  of."  Holland  also 
proposes  rules  upon  the  subject  of  reprisals  or  retaliation  which, 
he  says,  are  intended  to  represent  prevalent  authoritative  opin- 
ion upon  this  subject,  as  to  which  no  written  rules  have  yet  been 
adopted  by  international  consent.    They  read  as  follows: 

"Reprisals  must  be  exercised  only  subject  to  the  following 
restrictions: 

"1.  The  offence  in  question  must  have  been  carefully  in- 
quired into. 

"2.  Redress  for  the  wrong  or  punishment  of  the  real  offender 
must  be  unattainable. 

"3.  The  reprisals  must  be  authorized,  unless  under  very 
special  circumstances,  by  the  commander-in-chief. 

"4.  They  must  not  be  disproportionate  to  the  offence  and 
must  in  no  case  be  of  a  barbarous  character."  ^ 

Retaliation  or  reprisals  must  not  be  confounded  with  the 
punishment  of  an  offender  for  violation  of  the  rules  of  war. 


TOPICS  AND  REFERENCES 

1.  Laws  of  War  in  General — 

Westlake's  "International  Law,"  2d  ed.,  part  II,  chap.  III.  W.  E. 
Hall,  "International  Law,"  6th  ed.,  part  III,  chaps.  II,  VII,  and 
VIII.  General  G.  B.  Davis,  U.  S.  A.,  "Elements  of  International 
Law,"  3d  ed.,  chap.  X,  Appendices  A,  E,  F,  and  G. 

2.  Modern  Development  of  the  Laws  of  War — 

Oppenheim,  "International  Law,"  2d  ed.,  vol.  II,  78-83.  Higgins, 
"Hague  Conferences,"  256-272.  Moore's  "Digest  of  Interna- 
tional Law."  vol.  VII,  338-340. 

3.  War  and  the  Private  Citizen — 

Holland,  "The  Law  of  War  on  Land,"  1908.  Higgins,  "War  and 
the  Private  Citizen,"  1912.  Moore's  "Digest  of  International 
Law,"  vol.  VII,  chaps.  XXIII  to  XXVIII,  inclusive. 

» Holland,  "Laws  of  War  on  Land,"  1908,  pp.  60,  61. 


LAWS  OF  WAR  331 

4.  The  Laws  of  War  on  Land.    Belligerents — 

Hershey's  "Elements  of  International  Law,"  372-4.  Higgins, 
"War  and  the  Private  Citizen,"  1-70,  and  89-112.  Stockton, 
"Manual  of  International  Law,"  180-2. 

6.  Prisoners  of  War — 

Hershey's  "Elements  of  International  Law,"  374-380.  Wcstlake's 
"International  Law,"  2d  ed.,  67-72.  W.  E.  Hall,  "Interna^ 
tional  Law,"  6th  ed.,  399-412. 

6.  Hostilities — 

Brussels  Declaration.  Higgins,  "Hague  Conferences,"  273-280. 
Oppenheim,  2d  ed.,  vol.  II,  144-204.  Moore's  "Digest  of  Inter- 
national Law,"  vol.  VII,  178-215. 

7.  Spies — 

Ferguson,  vol.  II,  par.  192.  Phillimore,  vol.  Ill,  par.  96.  Snow's 
"International  Law,"  96. 

8.  Flags  of  Truce — 

Davis's  "Elements,"  3d  ed.,  337.  Boyd's  "Wheaton,"  par.  411. 
Risley's  "Law  of  Wax,"  153-5. 

0.  Capitulations — 

Twiss,  "The  Law  of  Nations,"  353-5.  Halleck,  Baker's  4th  ed., 
1878,  vol.  n,  348,  349,  383.    Woolsey,  6th  ed.,  255. 

10.  Armistices — 

Westlake,  "International  Law,"  2d  ed.,  vol.  II,  92,  93.  Hall,  6th 
ed.,  540-5.     Davis,-/' Elements,"  341. 

11.  Reprisals  or  Retaliations — 

Davis,  "Elements,"  324-7.  Oppenheim,  3d  ed.,  vol.  H,  805-317, 
Hall,  "International  Law,"  6th  ed.,  411. 

12.  Hostages — 

Spaight,  "  War  Rights  on  Land,"  465-470.  Bluntschli,  see.  600. 
Wcstlake's  "International  Law,"  vol.  II,  102.  Oppenheim's 
•*  International  Law,"  vol.  II,  272-3. 


CHAPTER  XX 
MARITIME  WARFARE 

150.  Maritime  War  in  General. — Maritime  warfare  differs 
from  warfare  on  land  not  only  in  the  area  of  its  operations,  the 
instruments  of  its  warfare,  and  the  methods  of  its  fighting  but 
also  in  many  of  its  laws  and  usages.  Although,  as  has  been 
previously  stated,  the  laws  of  land  warfare  apply  in  many  in- 
stances, especially  in  their  generalities,  to  those  applicable  to 
warfare  upon  the  sea,  still  there  are  certain  rules  not  only  ex- 
clusively for  sea  warfare  but  in  some  few  instances  opposed  to 
practices  on  land.  Such  are  those  applying  to  the  use  of  false 
colors,  the  capture  of  private  property  afloat,  and  the  dealing 
with  neutral  property. 

The  high  seas,  by  which  are  meant  technically  all  navigable 
waters  outside  of  the  territorial  waters  of  the  various  states 
but  including  in  war  time  as  fighting  zones  the  territorial  limits 
of  the  belligerents,  are  the  area  of  naval  operations.  It  gives, 
hence,  an  international  phase  to  sea  warfare  wanting  on  land. 
It  brings  also,  as  has  been  already  suggested,  into  full  play 
questions  of  neutral  trade,  such  as  the  right  of  search,  captures 
incident  to  the  carriage  of  contraband  articles,  unneutral  ser- 
vice, and  violation  of  the  blockade  of  seaports  generally  open  to 
international  trade. 

The  fact  that  maritime  nations  are  more  or  less  concerned 
in  sea  warfare  compels  the  creation  of  national  tribunals  by 
the  belligerents  for  the  purpose  of  determining  the  legality  of 
the  capture  of  prizes  as  well  as  causing  the  enactment  of  prize 
laws  and  international  conventions  and  codes  bearing  directly 

332 


MARITIME  WARFARE  333 

upon  such  legal  contentions.  It  is  highly  probable  and  desira- 
ble that  international  tribunals  shall  also  be  established  to 
provide  for  final  decisions  in  such  matters  of  international  dis- 
putes. 

The  writings  of  Admiral  Mahan  have  shown  most  lucidly 
that  the  history  of  both  ancient  and  modern  times  demonstrates 
the  effect  of  sea  power  not  only  upon  the  current  progress  of 
the  world  and  the  course  of  events  but  in  the  shaping  of  the 
future  for  nations  and  peoples. 

Ernest  Nys  well  says  that  the  control  of  the  sea  not  only 
assures  the  free  traverse  of  the  world  with  access  to  the  markets 
of  the  world  but  also  places  within  the  reach  of  the  conqueror 
afloat  the  coasts  of  the  enemy  with  the  possibility  of  blockade, 
bombardment,  or  invasion.^  There  is  also  no  exhibition  of 
concentrated  force  and  protection  in  the  world  equal  to  that 
contained  in  a  fleet  of  armored  vessels,  to  which  are  added  its 
resources,  its  radius  of  action,  and  mobility. 

The  general  and  controlling  object  of  maritime  war,  then, 
can  be  summed  up  to  be  essentially  the  control  of  the  sea  and 
the  consequent  exclusion  of  the  enemy,  the  capture  of  ships 
and  merchandise  being  only  incident  thereto. 

151.  Laws  and  Usages  of  War  at  Sea. — "The  special  ob- 
jects in  maritime  warfare  are  the  capture  or  destruction  of  the 
military  and  naval  forces  of  the  enemy,  of  his  fortifications, 
arsenals,  dry  docks,  and  dock-yards,  of  his  various  military 
and  naval  establishments,  and  of  his  maritime  commerce;  to 
prevent  his  procuring  war  material  from  neutral  sources;  to 
aid  and  assist  military  operations  on  land;  and  to  protect  and 
defend  the  national  territory,  property,  and  sea-borne  com- 
merce."* 

For  the  purposes  of  maritime  war,  besides  the  declaration 
of  Paris,  the  following  conventions  adopted  at  the  second 
Hague  conference  of  1907  and  ratified  by  the  United  States 

'Ernest  Nya,  "Le  Droit  International,"  1912,  vol.  Ill,  p.  16. 
*  Stockton,  art.  2,  "Tho  Lawa  and  Usagea  of  War  at  Soa.'! 


334  WAR-RELATIONS  OF  BELLIGERENTS 

in  1908  are  applicable:  The  convention  relative  to  the  laying 
of  automatic  submarine  contact  mines,  the  convention  re- 
specting bombardments  by  naval  forces  in  time  of  war,  the 
convention  for  the  adaptation  of  the  principles  of  the  Geneva 
convention  to  maritime  warfare,  the  convention  relative  to 
certain  restrictions  on  the  exercise  of  the  "right  of  capture 
in  maritime  war,"  and,  with  the  exception  of  two  articles,  the 
convention  respecting  the  rights  and  duties  of  neutral  powers 
in  maritime  wars. 

In  addition  to  these  is  the  convention  establishing  an  inter- 
national prize-court,  formulated  at  the  second  Hague  confer- 
ence, and  the  consequent  declaration  of  London  of  1909,  both 
of  which  were  ratified  by  the  United  States  in  1912,  the  inter- 
national prize-court  having  been  modified  by  a  protocol  at  the 
instance  of  the  United  States.  The  declaration  of  London, 
though  not  generally  ratified,  was  signed  and  agreed  upon  by 
all  of  the  delegates  to  the  international  naval  conference  held 
in  London  in  1908-9.  This  alone  gives  it  great  weight  as 
being  the  enunciation  of  certain  principles  of  international 
law  with  regard  to  maritime  war  and  other  matters  likely  to 
come  before  a  prize-court.  These  conventions  and  declara- 
tions will  be  referred  to  in  discussing  questions  of  which  they 
treat. 

152.  Attack  and  Capture  of  Public  Vessels  of  the  Enemy. — 
One  of  the  objects  of  maritime  war  has  been  given  as  the 
capture  or  destruction  of  public  armed  and  unarmed  vessels 
of  the  enemy  cruising  under  lawful  authority. 

In  these  times  the  vessels  just  enumerated  would  be  of  a 
multitude  of  types  and  of  many  origins.  Besides  the  usual 
and  regular  vessels  of  the  navy  in  existence  at  the  outbreak  of 
war,  the  entire  revenue  marine  service  of  the  United  States 
is  incorporated  by  law  into  the  navy,  the  subsidized  merchant 
liners  also  follow  the  same  course,  becoming  either  armed 
men-of-war  or  auxiliaries  and  to  which  would  be  added  such 
other  vessels  that  can  be  purchased  or  acquired  as  are  ca- 


MARITIME  WARFARE  335 

pable  of  use  as  colliers,  supply  vessels,  distilling  ships,  machine 
repair  vessels,  parent  ships  for  torpedo  vessels,  submarine  mine 
vessels,  transports,  hospital  ships,  etc. 

After  the  outbreak  of  war  all  men-of-war  and  other  vessels 
like  those  just  mentioned  of  the  enemy  which  are  met  by  a 
man-of-war  of  the  other  belligerent  on  the  high  seas  or  within 
the  territorial  waters  of  either  belligerents  can  at  once  be  at- 
tacked after  displaying  the  national  ensign  of  the  attacking 
vessel  or  fleet.  Only  a  man-of-war  can  attack  men-of-war,  un- 
less a  country,  like  our  own,  not  adherent  to  the  declaration  of 
Paris  should  create  privateers  and  issue  letters  of  marque. 
For  the  same  reason  as  a  non-adherent,  privateers  could  be  used 
against  us  in  warfare. 

A  merchantman  may  be  considered  as  having  the  right  to 
repel  an  attack  made  by  a  vessel  of  war  of  the  enemy. 

"On  March  27,  1913,  Mr.  Churchill,  during  a  speech  in  the 
British  House  of  Commons  upon  the  navy  estimates,  announced 
that  the  admiralty  proposed  to  encourage  British  ship  owners 
to  provide  for  the  defence  of  their  vessels  in  time  of  war  by 
lending  them  guns,  furnishing  them  with  ammunition,  and 
training  gun  crews  for  them,  provided  the  ship  owners  would 
pay  for  the  necessary  structural  alterations  of  their  ships. 
The  idea  of  Mr.  Churchill  was,  apparently,  not  to  arm  mer- 
chant ships  for  aggressive  action  in  the  event  of  war  but  to 
enable  the  larger  merchantmen  to  protect  themselves.  Wliile 
the  proposal  has  a  different  object  in  view  from  that  con- 
templated in  the  creation  of  a  volunteer  fleet,  and  while  it  in 
no  way  resembles  the  practice  of  privateering,  it  is  further 
evidence  to  show  that  the  role  that  vessels  originally  built  for 
commercial  purposes  have  played  in  time  of  war  has  not  yet 
become  obsolete."^ 

When  one  or  the  other  of  the  vessels  engaged  in  action  de- 
termines to  yield  or  surrender,  which  circumstance  is  generally 
shown  by  hauling  down  the  national  ensign  or  by  the  exhibi- 
*  Fenwick,  "Neutrality  Laws  of  tho  United  States,"  pp.  154,  155. 


336  WAR-RELATIONS  OF  BELLIGERENTS 

tion  of  the  white  flag  of  truce,  firing  must  cease  on  the  part  of 
the  victor  and  negotiations  should  follow  by  persons  or  signals. 
To  continue  an  attack  after  knowledge  of  surrender,  or  to  sink 
a  vessel  after  submission,  is  a  violation  of  the  rules  of  civilized 
warfare,  only  permissible  in  cases  of  treachery  or  renewal  of 
the  action. 

A  public  vessel  becoming  a  prize  of  war  is  taken  possession 
of  by  the  captor,  its  ofiBcers  and  men  become  prisoners  of  war, 
and  no  legal  proceedings  are  necessary  as  in  the  case  of  pri- 
vately owned  vessels.  Non-combatants  on  board  of  an  armed 
vessel  and  the  personnel  of  a  public  unarmed  vessel  of  the 
enemy  are  liable  to  detention  as  prisoners  of  war,  excepting 
those  who  are  exempt  under  the  Geneva  conventions.^ 

Public  and  private  vessels  of  the  enemy  are  exempt  from 
capture  if  they  are  engaged  solely  in  religious,  scientific,  or 
philanthropic  missions.  Cartel  ships,  which  are  vessels  of  the 
belligerents  employed  in  the  carriage  by  sea  of  exchanged  or 
paroled  prisoners  to  their  own  country  are  also  free  from  cap- 
ture, provided  they  do  not  engage  in  trade,  carry  unauthorized 
despatches,  or  engage  in  hostilities.  Hospital  ships  are  exempt 
from  capture  if  they  are  not  used  for  any  military  purposes. 
They  are  to  be  designated  in  accordance  with  the  provisions 
of  the  Geneva  convention  as  adapted  to  the  principles  of  mari- 
time warfare.^ 

The  belligerents  shall  have,  however,  the  right  to  control 
and  search  them,  and  they  may  detain  them  if  the  gravity  of 
the  circumstances  require  it.  Any  war-ship  belonging  to  a 
belligerent  may,  however,  demand  the  surrender  of  the  wounded, 
sick,  or  shipwrecked  who  are  on  board  military  hospital  ships, 
hospital  ships  belonging  to  relief  societies  or  to  private  indi- 
viduals, merchant  ships,  yachts  and  boats,  whatever  the  na- 
tionality of  such  vessels.^ 

» Stockton,  "Manual  of  Int.  Law  for  Naval  Officers,"  pp.  163,  164. 

*  Art.  5,  Convention  X  of  second  Hague  conference. 

•Higgins,  "Hague  Conferences,"  Convention  X,  Art.  12,  p.  369. 


MARITIME  WARFARE  337 

153.  The  Use  of  Torpedoes  and  Submarine  Mines.— In 
using  torpedoes  in  a  naval  action  it  is  now  required  that  they 
should  be  so  constructed  as  to  become  harmless  if  they  miss 
their  mark.  This  applies  also,  of  course,  when  such  torpedoes 
are  used  from  the  shore  in  attacking  the  vessels  of  the  enemy. 

An  indirect  and  comparatively  modern  method  of  attack 
upon  vessels  of  war  made  either  from  shore  or  by  vessels  of  the 
other  belligerent  is  through  floating  contact  mines,  operated 
automatically  or  otherwise.  The  convention  of  the  second 
Hague  conference  upon  the  subject  which  is  numbered  VIII 
arose  from  the  experience  of  the  Russo-Japanese  War.  Al- 
though such  instrumentalities  had  been  used  during  the  Ameri- 
can CivU  War,  they  came  more  particularly  into  prominence 
during  the  operations  in  the  vicinity  of  Port  Arthur.  Valuable 
vessels  of  war  and  great  loss  of  life  occurred  from  the  use  of 
these  mines  on  both  sides.  As  a  result,  the  use  of  these  mines 
became  the  subject  of  discussion  in  the  second  Hague  con- 
ference, resulting  in  the  convention  just  referred  to  and  to 
which  the  United  States  became  a  party. 

It  is  forbidden  by  this  convention  to  lay  or  use  anchored  or 
unanchored  automatic  contact  mines  or  torpedoes  unless  they 
are  so  constructed  as  to  become  harmless  after  they  have  either 
broken  adrift  or  missed  their  target  or,  in  case  of  floating  mines, 
one  hour  at  most  after  those  who  use  them  have  lost  control 
over  them. 

154.  Conversion  of  Merchantmen  into  Vessels  of  War. — 
This  is  a  matter  of  very  considerable  interest  in  maritime  war- 
fare, but  which  is  left  in  an  unsettled  condition  both  by  The 
Hague  conferences  and  the  London  naval  conference  from  the 
impossibility  of  agreement.  The  convention  of  the  second 
Hague  conference  in  regard  to  the  conversion  of  merchant  ships 
into  war-ships  is  very  vague  and  incomplete  as  to  its  main 
objects  and  is  apparently  more  to  secure  the  observance  of  the 
declaration  of  Paris  in  regard  to  privateering  than  for  the  re- 
gulation  implied  in  its  title.     For  this  and  other  reasons  the 


338*  WAR-RELATIONS  OF  BELLIGERENTS 

United  States  did  not  become  a  signatory  or  ratifying  power 
and  has  not  acceded  to  its  clauses,  as  it  has  not  adhered  to 
those  of  the  declaration  of  Paris. 

In  the  naval  conference  of  London  the  question  as  to  con- 
version on  the  high  seas  and  that  of  reconversion  afterward 
was  the  one  which  failed  of  agreement  and  which  consequently 
remains  open.  But,  besides  this  matter,  the  clause  of  the  decla- 
ration of  Paris  which  abolishes  privateering,  although  agreed 
to  by  all  the  important  states  of  the  world  except  the  United 
States,  and  by  that  country  in  practice,  has  begun  to  be  dis- 
cussed in  an  antagonistic  manner.  There  are  writers  in  Great 
Britain,  France,  and  Germany  who  question  the  desirability 
of  such  abolition.  It  is  not  likely,  however,  that  such  aboli- 
tion will  ever  be  done  away  with,  although  it  is  possible  that  the 
practice  of  the  conversion  of  merchantmen  into  vessels  of  war 
will  be  more  freely  practised  and  with  less  limitation  in  future 
maritime  wars,  even  to  an  extent  which  may  be  construed  into 
an  evasion  of  the  declaration  of  Paris.  The  policy  of  the  Brit- 
ish admiralty  in  favoring  the  arming  of  large  merchant  steamers 
for  self-defence  previously  referred  to  is  a  step  in  that  direc- 
tion. 

A  case  of  this  kind  took  place  in  the  Franco-German  War  of 
1870,  when  a  royal  Prussian  decree  was  issued  for  the  formation 
of  a  volunteer  navy.  German  ship  owners  and  sailors  were 
called  upon  to  place  themselves  and  their  ships  at  the  disposal 
of  the  state.  Volunteer  ships  were  to  be  placed  under  naval 
discipline  and  officers  and  crew  were  to  wear  the  uniform  of  the 
navy.  A  premium  was  offered  for  such  enemy  ships  as  should 
be  destroyed  or  captured  by  volunteer  ships,  varying  from  fifty 
thousand  thalers  for  an  iron-plated  frigate  to  ten  thousand 
thalers  for  a  screw  steamship.^ 

The  French  Government  protested  against  this  decree  and 
appealed  to  the  British  Government  as  a  violation  of  the  decla- 
ration of  Paris  abolishing  privateering.     The  British  Govern- 
*  Higgins,  "War  and  the  Private  Citizen,"  p.  120. 


MARITIME  WARFARE  339 

ment  of  the  day  decided  that  it  was  not  a  direct  violation  of 
the  clause  referred  to  of  the  declaration  of  Paris.  Hall,  how- 
ever, says  upon  this  point  that: 

"Nevertheless,  it  hardly  seems  to  be  clear  that  the  differ- 
ences, even  though  substantial,  between  privateers  and  a  vol- 
unteer navy  organized  in  the  above  manner  would  necessarily 
be  always  of  a  kind  to  prevent  the  two  from  being  identical  in 
all  important  respects."  ^ 

The  Russian  volunteer  fleet  formed  in  1877  is  engaged  in 
merchant  trade  in  peace  time  under  the  merchant  flag,  with 
the  commander  and  at  least  one  other  officer  of  the  imperial 
navy  on  board.  During  the  Russo-Japanese  War  two  of 
these  vessels,  the  Smolensk  and  Petersburg,  in  July,  1904,  passed 
through  the  Bosphorus  and  Dardanelles  from  the  Black  Sea 
flying  the  merchant  flag.  They  subsequently  passed  through 
the  Suez  Canal  under  the  same  flag.  When  in  the  Red  Sea 
they  hoisted  the  ensign  of  the  imperial  navy  and  the  Petersburg 
captured  the  P.  &  O.  steamer  Malacca  for  carrying  contraband 
of  war,  sending  her  into  Algiers  with  a  prize  crew.  Ultimately, 
after  strong  protests  from  the  British  Government,  these  vessels 
were  ordered  to  haul  down  the  flag  of  the  imperial  navy  and 
to  cease  to  act  as  cruisers,  and  Russia  agreed  that  all  vessels 
captured  by  them  should  be  restored.' 

A  conference  and  discussion  held  at  the  United  States  Naval 
War  College  in  1913  resulted  in  the  following  conclusions  as  to 
the  conversion  of  merchant  ships  into  ships  of  war  in  war 
time,  which  is  the  best  assemblage  of  rules  upon  the  subject 
at  the  present  time: 

1.  A  private  ship  converted  into  a  ship  of  war  cannot  have 
the  rights  and  duties  accruing  to  such  vessels  unless  it  is  placed 
under  the  direct  authority,  immediate  control,  and  responsi- 
bility of  the  power  whose  flag  it  flies. 

>  Hall,  6th  ed.,  pp.  520,  etc. 

'  Hershey,  "Int.  Law  and  Diplomacy  of  the  Russo-Japanese  War,"  p. 
151. 


340  WAR-RELATIONS  OF  BELLIGERENTS 

2.  Private  ships  converted  into  ships  of  war  must  bear  the 
external  marks  which  distinguish  the  war-ships  of  their  na- 
tionality. 

3.  The  commander  must  be  in  the  service  of  the  state  and 
duly  commissioned  by  the  competent  authorities.  His  name 
must  figure  on  the  list  of  the  officials  of  the  fighting  fleet. 

4.  The  crew  must  be  subject  to  military  discipline. 

5.  Every  private  ship  converted  into  a  ship  of  war  must 
observe  in  its  operations  the  laws  and  customs  of  war. 

6.  A  belligerent  who  converts  a  private  ship  into  a  ship  of 
war  must,  as  soon  as  possible,  announce  such  conversion  in  the 
list  of  its  ships  of  war.^ 

7.  Conversion  of  a  private  ship  into  a  ship  of  war  is  not  to 
take  place  except  in  the  waters  of  its  own  state  or  of  an  ally  or 
in  the  waters  occupied  by  one  of  these. 

8.  A  vessel  converted  into  a  ship  of  war  retains  its  character 
to  the  end  of  the  war. 

9.  These  provisions  do  not  apply  except  between  contract- 
ing powers  and  then  only  if  all  the  belligerents  are  parties.'' 

155.  Capture  of  Enemy's  Merchantmen. — Among  the  ob- 
jects of  maritime  war  that  have  been  previously  given  is  that 
of  the  capture  or  destruction  of  the  maritime  commerce  of  the 
enemy.  This  objective  is  still  in  force  throughout  the  mari- 
time world,  with  the  exception  where  treaty  between  countries 
provides  otherwise.  So  far  as  the  United  States  is  concerned, 
such  capture  is  sanctioned  by  the  law  of  the  land  and  has  been 
practised  in  all  warfare  in  its  history.  The  treaty  between  the 
United  States  and  Italy  of  February  26, 1871,  however,  exempts 
in  case  of  war  between  the  two  nations  the  private  property  of 
their  respective  citizens  and  subjects  from  capture  or  seizure 
on  the  high  seas  except  in  case  of  carriage  of  contraband  or 
violation  of  blockade.  In  1866  the  war  between  Austria  and 
Germany  and  Austria  and  Italy  was  carried  on  to  the  end 

lArt,  6,  "Hague  Convention  Relative  to  the  Conversion  of  Private 
Vessels  into  Public  Vessels,"  Higgins,  p.  309. 
» Naval  War  College,  "Int.  Law  Topics,"  1913,  pp.  153,  154. 


MARITIIVIE  WARFARE  341 

without  any  capture  of  private  property  at  sea.  So  far  as  the 
United  States  is  concerned,  by  an  enactment  in  1899  no  prize 
money  or  bounty  is  allowed  for  captures  of  any  kind  afloat 
during  war. 

The  United  States  as  a  government  has  been  the  leading 
champion  in  favor  of  the  adoption  of  the  principle  of  the  im- 
munity from  capture  of  private  property  at  sea,  excepting  for 
the  carriage  of  contraband  and  violation  of  blockade.  In 
1904  Congress  of  the  United  States  adopted  a  resolution  in 
its  favor  and  propositions  for  the  immunity  were  brought 
before  the  first  and  second  Hague  conferences  by  the  American 
delegations.  In  the  second  Hague  conference  the  proposition 
was  put  to  vote,  in  which  twenty-one  states  voted  for,  eleven 
against,  one  abstained,  and  eleven  were  absent. 

It  received  the  qualified  support  of  Germany,  but  the  oppo- 
sition of  France,  Great  Britain,  Russia,  Japan,  Spain,  and  Por- 
tugal, with  others  of  lesser  rank  as  maritime  powers.  Hence 
the  proposition  having  such  strong  opposition  was  considered  as 
lost  as  an  accepted  principle  and  does  not  figure  among  the 
conventions  of  The  Hague. 

Although  officially  the  United  States,  with  a  great  number  of 
Its  statesmen  and  publicists,  has  favored  this  exemption,  such 
publicists  and  authorities  as  Wheaton,  Kent,  Dana,  Halleck, 
Mahan,  Hyde,  Wilson,  and  others  oppose  it.  In  Europe  there 
seems  to  be  an  equal  division  of  advocates  and  opponents 
among  the  same  class  of  men. 

The  arguments  of  the  advocacy  of  immunity  rest  mainly 
upon  considerations  of  humanity,  progress,  and  commercial 
interests.  Its  advocates  also  urge  that  war  is  essentially  or 
exclusivelv  a  relation  between  states  and  their  armed  forces, 
and,  pointing  out  the  analogy  between  land  and  maritime  war- 
fare, claim  that  immunity  would  tend  to  the  limitation  of  war, 
while  denying  that  one  of  the  essential  objects  of  modern 
warfare  is  the  destruction  of  the  enemy's  commerce.^ 
1  Hershey,  "Essentials  of  Int.  Law,"  pp.  441,  442. 


342  WAR-RELATIONS  OF  BELLIGERENTS  ^--^-  jj 

In  regard  to  these  arguments  it  may  be  briefly  stated  that 
there  are  few  operations  of  war  in  which  the  private  individual 
is  concerned,  either  afloat  or  ashore,  with  less  inhumanity  con- 
nected with  them  than  the  capture  of  private  property  at  sea. 
In  the  first  place,  the  growing  number  of  exemptions  which 
concern  fishing  and  other  small  craft  relieve  the  poorer  owners 
in  a  way  which  has  no  parallel  in  land  warfare;  the  duration  of 
the  time  of  the  days  of  grace  after  the  outbreak  of  war  gives 
reasonable  notification,  while  the  inviolability  of  enemy  goods 
under  neutral  flag  and  the  exemption  of  officers  and  crew  of 
the  captured  merchantmen  from  being  made  prisoners  of  war 
still  further  lessen  the  hardships  and  inconvenience  of  such 
capture.  To  which  may  be  also  added  the  exemption  from  cap- 
ture of  the  only  really  private  property  on  board,  that  belong- 
ing to  the  passengers,  oflBcers,  and  crew.  The  cargo  and  vessel 
has,  on  the  other  hand,  a  semipublic  status  from  its  contribu- 
tion of  customs  dues  and  otherwise  to  the  resources  of  the 
belligerent  whose  flag  it  carries. 

It  is  further  urged  b}'  those  in  favor  of  the  continuance  of 
this  practice  that  it  becomes  a  matter  of  patriotic  duty  and,  it 
may  be,  even  of  self-preservation  in  the  interests  of  a  country 
as  a  belligerent  to  consider  the  war  value  of  every  seagoing 
steamship  from  the  possibility  of  its  use  as  a  naval  auxiliary, 
an  army  transport,  or  by  conversion  into  a  belligerent  and  hos- 
tile cruiser.  In  addition  there  must  be  borne  in  mind  the  pres- 
sure for  peace  resulting  from  the  capture  of  an  enemy's  sea- 
borne supplies  and  provisions,  which  may  become  a  vital 
factor  to  insular  countries  or  states  which  have  become  isolated 
by  war  and  which  require  external  supplies  for  their  redun- 
dant population. 

The  narrowing  of  the  effect  of  war  upon  the  private  individ- 
ual, which  runs  throughout  the  whole  subject,  is  further  ex- 
emplified by  the  most  recent  practice  of  land  war  with  the 
suffering  and  desolation  that  accompany  the  march  of  an  army 
with  its  widely  spread  detachments.     The  elimination  of  the 


MARITIME  WARFARE  343 

private  Individual  from  the  fortunes  of  war  seems  difficult 
when  their  countries  are  engaged  in  hostilities.  This  is  espe- 
cially and  very  closely  the  case  in  land  warfare.^ 

156.  Exemptions  and  Restrictions  in  Capture  in  Maritime 
Warfare. — Convention  No.  VII  of  the  second  Hague  confer- 
ence in  regard  to  the  treatment  of  enemy  merchant  vessels  at 
the  outbreak  of  hostilities,  so  far  as  days  of  grace  are  con- 
cerned, was  not  signed  by  the  United  States  on  the  ground 
that  it  was  an  unsatisfactory  compromise.  Our  own  practice 
in  the  matters  treated  in  this  convention  is  much  more  liberal 
and,  as  a  rule,  we  may  be  considered  to  be  in  accord  with  the 
principles  stated  that,  at  the  outbreak  of  war,  vessels  should  be 
allowed  to  depart  at  once  or  after  a  sufficient  term  of  grace  and 
to  proceed  without  molestation  to  their  destination. 

"During  the  Spanish-American  War  we  allowed  by  procla- 
mation, issued  April  26,  1898,  Spanish  merchantmen  until 
May  21  for  loading  their  cargoes  and  departing,  and  such  car- 
goes were  not  to  be  captured  on  their  voyage  if  it  appeared 
from  their  papers  that  the  cargoes  were  taken  on  board  within 
the  time  allowed.  Exception  was  made  of  vessels  having  on 
board  military  or  naval  officers  of  the  enemy,  contraband  of 
V7£ir,  or  despatches  to  or  from  the  Spanish  Government.  Gen- 
erally the  period  of  days  of  grace  allowed  for  a  stay  or  de- 
parture from  port  by  other  countries  is  very  short.  "'^  In  some 
cases  it  is  refused  unless  granted  reciprocally. 

"Vessels  employed  exclusively  in  coast  fisheries  or  small 
boats  employed  in  local  trade  are  exempt  from  capture,  to- 
gether with  their  appliances,  rigging,  tackle,  and  cargo.  This 
exemption  ceases  as  soon  as  they  take  any  part  whatever  in 
hostilities."  This  article  (3  of  Convention  XII  of  the  second 
Hague  conference)  is  binding  upon  the  United  States  and  was 
in  accordance  with  the  decision  of  the  United  States  Supreme 
Court  in  the  Spanish-American  War.^     In  the  last  clause  of 

*  Higgins,  "War  and  the  Private  Citizen,"  pp.  GG-70. 
'Stockton,  "Manual  of  Int.  Law  for  Naval  Officers,"  p.  1G7. 

•  Caae  of  El  Puqucle  Uabana,  Scott's  "Casea." 


344  WAR-RELATIONS  OF  BELLIGERENTS 

this  article,  "the  contracting  powers  bind  themselves  not  to 
take  advantage  of  the  harmless  character  of  the  said  vessels 
in  order  to  use  them  for  military  purposes  while  preserving  their 
peaceful  character. 

"The  postal  correspondence  of  neutrals  or  belligerents, 
whether  official  or  private  in  character,  which  may  be  found  on 
board  a  neutral  or  enemy  ship  at  sea  is  inviolable.  If  the  ship 
is  detained,  the  correspondence  is  forwarded  by  the  captors 
with  the  least  possible  delay. 

"The  provisions  of  the  preceding  paragraph  do  not  apply, 
in  case  of  violation  of  blockade,  to  correspondence  destined  for 
or  proceeding  from  the  blockaded  port. 

"The  inviolability  of  postal  correspondence  does  not  exempt 
a  neutral  mail  ship  from  the  laws  and  customs  of  naval  war 
respecting  neutral  merchant  ships  in  general.  The  ship,  how- 
ever, may  not  be  searched  except  when  absolutely  necessary, 
and  then  only  with  as  much  consideration  and  expedition  as 
possible."  ^ 

Articles  5,  6,  7,  and  8  of  the  same  convention  state  that 
when  an  enemy  merchant  ship  is  captured  by  a  belligerent  such 
of  its  crew  as  are  nationals  of  a  neutral  state  are  not  made 
prisoners  of  war. 

The  same  rule  applies  in  the  case  of  the  captain  and  officers, 
likewise  nationals  of  a  neutral  state,  if  they  give  a  formal 
promise  in  writing  not  to  serve  on  an  enemy  ship  while  the 
war  lasts. 

The  captain,  officers,  and  members  of  the  crew,  when  nationals 
of  the  enemy  state,  are  not  made  prisoners  of  war,  provided 
that  they  undertake  on  the  faith  of  a  formal  written  promise 
not  to  engage,  while  hostilities  last,  in  any  service  connected 
with  the  operations  of  the  war. 

The  names  of  the  persons  retaining  their  liberty  under  the 
conditions  laid  down  above  are  notified  by  the  belligerent 
captor  to  the  other  belligerent.  The  latter  is  forbidden  know- 
^Higgins,  "Hague  Peace  Conferences,"  p.  396. 


MARITBIE  WARFARE  345 

ingly  to  employ  the  said  persons.  The  provisions  of  these 
articles  do  not  apply  to  ships  taking  part  in  hostilities.^ 

Hospital  ships,  as  mentioned,  if  applied  to  military  uses  are 
not  allowed  exemption  by  the  Geneva  convention.  A  case  of 
a  violation  of  the  restriction  from  hostile  purposes  and  the 
consequent  capture  of  the  hospital  ship  was  that  of  the  Orel  in 
the  Russo-Japanese  War. 

"The  Aryol  or  Orel  was  a  hospital  ship  of  the  Russian  Red 
Cross  Society.  She  was  fitted  out  and  employed  in  accordance 
with  the  provisions  of  The  Hague  convention  of  1899  for  the 
adaptation  to  maritime  warfare  of  the  principles  of  the  Geneva 
convention  of  1864.  She  was  attached  to  the  second  Pacific 
Russian  squadron  and  joined  it  at  Tangier.  She  was  cap- 
tured by  the  Japanese  man-of-war  Sadu  Maru  during  the  naval 
engagement  near  Okino  Shima,  and  taken  into  Miura  Bay  for 
condemnation.  The  case  came  before  the  prize-court  of  Sasebo, 
and  the  result  is  reported  in  the  Japanese  ojQBcial  Garette  of 
August  1,  1905. 

"The  Aryol  was  condemned  as  good  prize  on  the  following 
grounds:  (1)  She  had  communicated  the  orders  of  the  com- 
mander-in-chief of  the  Russian  Pacific  second  squadron  to  other 
vessels  during  her  eastward  voyage  with  this  squadron;  (2)  she 
was  carrying,  by  order  of  the  commander-in-chief  of  the  squad- 
ron, the  master  and  three  members  of  the  crew  of  the  British 
steamship  OldJiamia,  which  had  been  captured  by  the  Oleg,  a 
war-ship  of  that  squadron,  with  a  view  of  taking  them  to  Vladi- 
vostok, although  they  were  in  good  health;  (3)  she  had  been 
instructed  to  purchase  in  Capetown,  or  its  neighborhood, 
eleven  thousand  feet  of  conducting  wire  of  good  insulation; 
(4)  when  the  Russian  squadron  was  proceeding  toward  Tsu- 
shima Channel,  she  and  another  hospital  ship,  the  Kostroma, 
navigated  at  the  head  of  the  squadron  in  the  position  usually 
occupied  by  reconnoitring  ships."  ^ 

1  Higgins,  "Hague  Conferences,"  pp.  397,  398. 

*  Higgins,  "War  and  the  Private  Citizen,"  pp.  74,  75. 


346  WAR-RELATIONS  OF  BELLIGERENTS 

The  condemnation  of  this  vessel,  the  facts  having  been 
proven,  was  fully  justified  upon  all  of  the  points  named.  If 
for  humanitarian  or  other  reasons  use  is  made  of  a  hospital 
ship  as  a  refuge  for  the  passengers  or  crews  of  ships  sunk  by 
orders  of  a  commander  of  a  naval  force,  the  hospital  ship  is 
liable  to  capture  and  condemnation  as  a  lawful  prize  for  vio- 
lation of  the  rules  of  the  Geneva  convention. 

In  regard  to  the  power  given  in  Article  XII  of  the  Geneva 
convention,  the  purport  of  which  was  quoted  in  an  earlier 
paragraph,  it  can  be  said  to  justify  the  contention  of  the  United 
States  in  the  matter  of  the  Deerhound,  which  vessel,  a  yacht 
under  the  English  flag,  rescued  Captain  Semmes  of  the  Alabama 
and  declined  to  surrender  him  to  the  Kearsarge.  Not  only  was 
he  landed  upon  neutral  soil  but  he  took  part  in  hostilities  at  a 
later  date.  The  English  delegates,  while  accepting  this  article 
at  the  second  Hague  conference,  declared  their  understanding 
that  it  applied  only  to  the  case  of  combatants  rescued  during 
or  after  a  naval  engagement  in  which  they  have  taken  part.^ 

157.    Enemy    Character    in    Maritime    Warfare. — In    the 

declaration  of  Paris  it  is  established  that  the  neutral  flag  covers 
enemy's  goods  with  the  exception  of  contraband  of  war  and 
that  neutral  goods,  with  the  same  exception,  are  not  liable  to 
capture  under  the  flag  of  an  enemy. 

Besides  this  the  following  general  rules  were  incorporated  in 
the  declaration  of  London  for  the  determination  of  the  char- 
acter of  a  merchant  vessel  with  its  consequent  liability  to  cap- 
ture: 

"  Subject  to  the  provisions  respecting  the  transfer  of  flag,  the 
neutral  or  enemy  character  of  a  vessel  is  determined  by  the 
flag  which  she  has  a  right  to  fly. 

"The  neutral  or  enemy  character  of  goods  found  on  board 
an  enemy's  vessel  is  determined  by  the  neutral  or  enemy  char- 
acter of  the  owner. 

"  If  the  neutral  character  of  goods  found  on  board  an  enemy 
vessel  is  not  proven  they  are  presumed  to  be  enemy  goods. 
*  Higgins,  "Hague  Conferences,"  p.  389. 


MARITIME  WARFARE  347 

"The  enemy  character  of  goods  on  board  an  enemy  vessel 
continues  until  they  reach  their  destination,  notwithstanding 
an  intervening  transfer  after  the  opening  of  hostilities  while 
the  goods  are  being  forwarded. 

"If,  however,  prior  to  the  capture,  a  former  neutral  owner 
exercises,  on  the  bankruptcy  of  a  present  enemy  owner,  a  legal 
right  to  recover  the  goods,  they  regain  their  neutral  character."* 
The  conditions  referred  to  as  the  transfer  of  an  enemy  vessel 
to  a  neutral  flag  are  found  in  the  Articles  55  and  56  of  the 
declaration  of  London,  in  Appendix  IV  of  this  book. 

As  to  the  tests  of  enemy  character  so  far  as  the  merchant- 
man is  concerned,  that,  on  account  of  the  divergent  views,  has 
been  left  open  in  the  declaration  of  London.  The  Anglo- 
American  school  makes  the  enemy  character  in  warfare  at  sea 
depend  upon  the  commercial  domicile  of  the  owner,  while  the 
Franco-German  systems  apply  the  test  of  the  individual  na- 
tionality of  the  owner. 

158.  The  Procedure  of  the  Capture  and  Sending  in  of  a 
Merchantman. — Before  the  capture  of  a  merchant  vessel  of 
an  enemy  it  is  necessary  to  determine  its  nationality.  If  this 
is  shown  to  be  that  of  an  enemy  by  the  display  of  the  colors, 
she  is  at  once  taken  possession  of  upon  her  surrender  after 
being  brought  to  by  signal  or  a  summoning  gun.  If  neither 
should  be  sufficient  to  cause  the  vessel  to  lie  to  or  stop,  a  pro- 
jectile is  fired  across  her  bows,  and  in  case  of  continued  flight 
cr  of  resistance  force  can  be  used  to  compel  her  to  stop  or 
surrender. 

In  case  no  colors  are  shown,  or  any  other  colors  than  those 
of  the  enemy,  the  intercepting  vessel  proceeds  to  exercise  the 
war  right  of  visit  and  search.  If  the  papers  of  the  vessel  show 
her  to  be  an  enemy,  or  carrying  contraband  of  war,  or  en- 
gaged in  the  violation  of  a  blockade  or  in  unneutral  service, 
the  vessel  should  be  seized;  otherwise  she  should  be  released 
unless  circumstances  make  necessary  a  further  search  and  con- 

»  See  AppendixIV,  Declaration  of  London,  Arts.  57, 58,  59,  and  60. 


348  WAR-RELATIONS  OF  BELLIGERENTS 

sequent  detention.  If  the  vessel  should  be  released,  an  entry 
in  her  log-book  should  be  made  to  that  effect  by  the  boarding 
officer. 

After  a  capture,  under  normal  circumstances,  the  prize  should 
be  sent  in  for  adjudication,  unless  otherwise  directed,  to  the 
nearest  suitable  port  within  the  territorial  jurisdiction  of  the 
captor  in  which  a  prize-court  exists. 

The  prize  should  be  delivered  to  the  court  as  nearly  as  pos- 
sible in  the  condition  in  which  she  was  at  the  time  of  capture, 
and  to  this  end  her  papers  should  be  carefully  sealed  at  the 
time  of  seizure  and  kept  in  the  custody  of  the  prize-master. 

All  witnesses  whose  testimony  is  necessary  to  the  adjudica- 
tion of  the  prize  should  be  detained  and  sent  in,  and,  if  circum- 
stances permit,  it  is  preferable  that  the  officer  making  the  search 
should  act  as  prize-master.  The  title  to  property  requiring 
adjudication  as  a  prize  changes  only  by  the  decision  rendered 
by  the  prize-court;  hence  the  national  colors  of  the  vessel 
seized  remain  her  proper  flag  until  such  decision  is  rendered.^ 

159.  Destruction  of  Enemy  Vessels  as  Prizes. — As  a  rule, 
the  captured  enemy  merchantman  must  not  be  destroyed  but 
sent  in  as  a  prize  to  port  for  adjudication  by  a  prize-court.  In 
case  of  military  or  other  necessity,  these  vessels  may  be  destroyed 
or  they  may  be  retained  for  the  immediate  service  of  the  gov- 
ernment of  the  captor.  In  such  cases  they  are  to  be  surveyed, 
appraised,  and  inventoried  and  the  results  sent  to  the  prize- 
court  where  proceedings  are  to  be  held. 

The  laws  of  the  United  States  as  given  in  Revised  Statutes, 
Section  4624,  allow  the  appropriation  of  a  prize  for  the  use  of 
the  United  States  without  adjudication.  The  papers,  etc., 
with  an  appraisal  of  the  value  of  the  vessel,  are  sent  to  a  proper 
court  for  the  action  required  as  in  case  of  a  vessel  sent  in. 

During  the  War  of  1812  repeated  instructions  were  sent  out 
by  the  government  directing  the  destruction  of  enemy  prizes. 
"A  single  cruiser,  if  ever  so  successful,"  said  the  secretary  of 
^  Stockton,  "  Manual  of  Int.  Law  for  Naval  Officers,"  pp.  173-5. 


MARITIME  WARFARE  349 

the  navy,  "  can  man  but  a  few  prizes,  and  every  prize  is  a  seri- 
ous diminution  of  her  force."  The  same  practice,  and  for  the 
same  reason,  existed  during  our  Revolutionary  War. 

In  the  instructions  to  the  United  States  blockading  vessels 
and  cruisers  in  the  Spanish-American  War,  it  was  stated  that 
"if  there  are  controlling  reasons  why  vessels  may  not  be  sent 
in  for  adjudication,  as  unseaworthiness,  the  existence  of  in- 
fectious disease,  or  the  lack  of  a  prize-crew,  they  may  be  ap- 
praised and  sold;  and  if  this  cannot  be  done  they  may  be  de- 
stroyed. The  imminent  danger  of  recapture  would  justify 
destruction,  if  there  was  no  doubt  that  the  vessel  was  good  prize. 
But  in  all  such  cases  all  the  papers  and  other  testimony  should 
be  sent  to  the  prize-court  in  order  that  a  decree  may  be  duly 
entered."  Such  destruction  is  also  allowed  by  the  Russian, 
French,  and  Japanese  instructions.^ 

i6o.  Resistance  to  Search,  Recapture,  Ransom,  and  Safe 
Conduct. — The  most  authoritative  statement  as  to  a  resistance 
to  search  upon  the  part  of  an  enemy  merchantman  as  well  as 
the  part  of  a  neutral  merchant  vessel  is  found  in  the  declaration 
of  London  (see  Appendix  IV),  in  Article  63,  and  in  the  accom- 
panying report  made  by  the  draughting  committee  of  the 
London  naval  conference.  The  article  states  that  "forcible 
resistance  to  the  legitimate  exercise  of  the  right  of  stoppage, 
search,  and  capture  involves  in  all  cases  the  condemnation  of 
the  vessel.  The  cargo  is  also  liable  to  the  same  treatment  as 
the  cargo  of  an  enemy  vessel.  Goods  belonging  to  the  master 
or  owner  of  the  vessel  are  treated  as  enemy  goods." 

The  accompanying  reports  state  that,  in  case  the  vessel  sum- 
moned does  not  stop,  the  belligerent  cruiser  may  employ  force; 
and  if  the  merchant  vessel  is  damaged  or  sunk  she  has  no  right 
to  complain  as  she  has  failed  to  comply  with  an  obligation 
imposed  upon  her  by  the  law  of  nations.^ 

The  question  of  recapture  of  a  prize  is  a  matter  of  prize  laws. 


»  Moore's  "Digest,"  pp.  517,  518,  etc 
»  Miacellaneous  Pari.  Papers,  no.  419( 


.'41909,  par.  6364. 


350.  WAR-RELATIONS  OF  BELLIGERENTS 

and  by  usage  requires  a  firm  possession  of  twenty-four  hours. 
It  is  a  legitimate  act  of  war  when  done  by  the  crew  of  the 
vessel  or  by  her  compatriots.  The  United  States  act  of  1800, 
providing  for  salvage  in  case  of  recapture,  was  embodied  in  the 
act  of  June  30, 1864,  and  the  United  States  Revised  Statutes, 
Section  4652. 

Sometimes,  instead  of  being  sent  in  as  a  prize,  the  master,  as 
agent  of  the  owner,  repurchases  his  right  by  a  ransom.  Ran- 
som bills  were  taken  by  Confederate  cruisers  subject  to  the 
recognition  of  the  Southern  Confederacy.  This  practice  may 
be  revived  on  account  of  the  difficulty  of  furnishing  prize-crews 
from  the  complement  of  a  modern  vessel  of  war  and  is  better 
than  destruction  of  prizes. 

Safe  conducts  were  issued  during  the  Spanish-American  War 
to  the  Spanish  merchant  vessels  engaged  in  transporting  Span- 
ish prisoners  from  Santiago  de  Cuba  to  Spain  by  the  United 
States  consuls,  under  instruction  of  the  Department  of  State. 

i6i.  Bombardments  by  Naval  Forces  in  Time  of  War.— 
The  bombardment  by  naval  forces  of  undefended  ports,  towns, 
villages,  dwellings,  or  buildings  is  forbidden  by  Convention  IX 
of  the  second  Hague  conference.  The  anchorage  of  automatic 
submarine  contact  mines  off  the  harbor  does  not  render  a  place 
liable  to  such  bombardment. 

Military  works,  military  or  naval  establishments,  depots  of 
arms  or  war  material,  workshops  or  plants  which  could  be 
utilized  for  the  needs  of  the  hostile  fleet  or  army,  and  ships  of 
war  in  the  harbor  are  not  free  from  attack  and  destruction. 

The  commander  of  a  naval  force  incurs  no  responsibility  for 
any  unavoidable  damage  which  may  be  caused  by  a  bombard- 
ment under  such  circumstances.  The  prohibition  to  bombard 
the  undefended  town  holds  good,  however,  and  the  com- 
mander is  required  to  take  all  due  measures  in  order  that  the 
town  may  suffer  as  little  harm  as  possible. 

If  the  local  authorities  of  an  undefended  port  or  town  should 
decline  to  comply  with  requisitions  for  provisions  or  supplies 


MARITIME  WARFARE  351 

necessary  for  the  immediate  needs  of  the  naval  force  and 
within  the  resources  of  the  place,  after  due  notice  such  place 
may  be  bombarded.  This  does  not  apply,  however,  to  money 
contributions.^ 

In  any  bombardment  all  necessary  steps  should  be  taken  to 
spare  all  public  buildings  such  as  mentioned  in  the  rules  for 
land  warfare.  These  should  be  marked  by  visible  signs, 
however. 

Unless  military  exigencies  render  it  impossible,  the  com- 
mander of  an  attacking  naval  force  must,  before  commencing 
the  bombardment,  do  all  in  his  power  to  warn  the  authorities. 
The  giving  over  of  a  town  to  pillage  is  forbidden. 

162.  Submarine  Cables  in  Time  of  War. — In  Article  54  of 
the  Convention  IV  upon  the  laws  and  customs  of  war  on  land 
it  is  stated  that: 

"Submarine  cables  connecting  a  territory  occupied  with  a 
neutral  territory  shall  not  be  seized  or  destroyed  except  in 
case  of  absolute  necessity.  They  also  must  be  restored  and 
indemnities  for  them  regulated  at  the  peace." 

As  the  above  article  is  the  only  one  dealing  with  submarine 
cables  in  force  at  present  with  the  sanction  of  an  international 
obligation,  it  may  be  well  to  quote  from  the  United  States 
Naval  code,  in  Article  5,  which  has  met  with  general  approval 
by  the  writers  upon  the  matter.     It  reads  as  follows: 

"1.  Submarine  telegraphic  cables  between  points  in  the 
territory  of  an  enemy,  or  between  the  United  States  and  that 
of  an  enemy,  are  subject  to  such  treatment  as  the  necessities 
of  war  may  require. 

"2.  Submarine  telegraphic  cables  between  the  territory  of 
an  enemy  and  neutral  territory  may  be  interrupted  within  the 
territorial  jurisdiction  of  the  enemy. 

"  3.  Submarine  telegraphic  cables  between  two  neutral  coun- 
tries shall  be  held  inviolable  and  free  from  interruption." 

During  the  Spanish-American  War  the  following  instructions 
*  Higgins,  "Peace  CoDfcrences,"  pp.  346,  350. 


352  WAR-RELATIONS  OF  BELLIGERENTS 

were  given  by  the  British  Government  as  to  the  use  of  tele- 
graphic cables  at  that  time  in  British  territory: 

"  Belligerent  war  vessels  should  be  prevented  from  using  the 
telegraph  for  the  purpose  of  sending  in  cipher  or  otherwise 
messages  of  which  the  object  is  to  direct  or  influence  warlike 
operations.  A  belligerent  war  vessel  may,  however,  use  the 
telegraph  for  messages  which  do  not  relate  to  proceedings  of 
the  belligerents  or  for  messages  which  are  not  in  cipher,  nar- 
rating past  operations  and  intended  for  general  publication 
as  news.  OflBcers  in  command  of  belligerent  war  vessels  should 
be  informed  that  it  is  a  condition  of  their  being  permitted  to 
use  the  telegraph  to  guarantee  and  agree  that  they  shall  ab- 
stain from  transmitting  or  procuring  the  transmission  of  any 
telegrams  which  concern  the  conduct  of  warlike  operations. 
Vessels  which  merely  carry  despatches  may  be  permitted  the 
telegraph,  and  should  not,  except  under  special  circumstances, 
be  subjected  to  the  same  conditions  as  belligerent  war  vessels 
with  respect  to  not  using  the  cable.  Consular  officers  have  a 
right  to  free  communication  with  their  government,  whether 
plain  or  in  cipher."^ 

"There  is  no  international  law  established  as  to  submarine 
cables  in  time  of  war,  except  the  vague  Article  54  of  Convention 
IV  of  The  Hague  conventions.  In  a  study  of  this  question  it 
must  be  observed  that  the  material  of  a  submarine  telegraphic 
cable  is  by  the  declaration  of  London  classed  as  conditional 
contraband  and  is  liable  to  seizure  if  found  on  the  high  seas  or 
within  the  territorial  jurisdiction  of  the  belligerents  if  it  is 
bound  for  an  enemy  destination  or  for  his  service.  Unless  it  is 
strictly  censored  when  laid  between  a  neutral  and  belligerent, 
which  is  difficult,  judging  from  the  British  instructions  just 
quoted,  it  will  undoubtedly  be  used  for  unneutral  service.  The 
importance  of  using  a  cable  to  carry  vital  despatches  of  the 
enemy  and  the  equal  importance  of  preventing  the  delivery  of 
such  despatches  by  the  other  belligerent  renders  it  a  proper 
*  Stockton,  "Manual  Int.  Law  for  Naval  Ofl&cers,"  pp.  176,  177. 


MARITIME  WARFARE  353 

warlike  measure  to  cut  the  cable  leading  from  a  neutral  to  an 
enemy,  if  not  completely  censored  in  war  time.  The  whole 
matter  was  well  summed  up  after  discussion  at  the  United  States 
Naval  War  College  in  the  following  terms: 

"'Practice,  general  principles,  and  opinion  alike  support  the 
position  that  a  cable  connecting  one  belligerent  and  a  neutral 
territory  and  rendering  unneutral  service  is  liable  to  interrup- 
tion by  the  other  belligerent  at  any  point  outside  of  neutral 
jurisdiction.  War  will  often  make  such  interruption  a  reason- 
able necessity.'"^ 

TOPICS  AND  REFERENCES 

1.  Maritime  War  in  General — 

Westlake,  2d  ed.,  part  II,  chap.  VI.  Moore's  "Digest  of  Interna- 
tional Law,"  vol.  VII,  chap.  XXIV.  Oppenheim,  "International 
Law,"  2d  ed.,  vol.  II,  chap.  IV,  216,  224. 

2.  Laws  and  Usages  of  War  at  Sea — 

Stockton's  "Laws  and  Usages  of  War  at  Sea."  G.  B.  Davis, 
"Elements  of  International  Law,"  3d  ed.,  357,  368.  Naval  War 
College,  "International  Law  Topics,"  etc.,  1913. 

3.  Attack  and  Capture  of  Public  Vessels  of  the  Enemy — 

Stockton,  "Manual  of  International  Law  for  Naval  Officers,"  163, 
165.  Hall,  "International  Law,"  6th  ed.,  518-525.  Higgins, 
"Hague  Peace  Conferences,  Conventions  X  and  XII,"  358-406, 
Appendix  V. 

4.  The  Use  of  Torpedoes  and  Submarine  Mines — 

Higgins,  "Hague  Peace  Conferences,"  322-345.  "Naval  War  Col- 
lege Topics,"  etc.,  1913,  132-146.  T.  J.  Lawrence,  "War  and 
Neutrality  in  the  East,"  2d  ed.,  93,  etc.  Westlake,  "Interna- 
tional Law,"  2d  ed.,  vol.  II,  312-317. 

5.  The  Conversion  of  Merchantmen  into  Vessels  of  War — 

Hershey,  "Essentials  of  International  Law,"  421-3.  Higgins,  "War 
and  the  Private  Citizen,"  115-165.  Higgins,  "The  Hague  Peace 
Conferences,"    308-321. 

»  "Naval  War  College  Topics,"  etc.,  1902,  pp.  19,  20. 


354  WAR-RELATIONS  OP  BELLIGERENTS 

6.  Capture  of  Enemy  Merchantmen — 

Lord  Loreburn,  "Captm-e  at  Sea,"  18-76.  Mahan,  "Negative 
Aspects  of  War,"  1907,  157,  etc.  J.  H.  Choate,  "American  Ad- 
dresses," 1-24.  Stockton,  I,  A.  J.  I.  L.,  1907,  930-943,  as  to 
"The  Immunity  from  Capture  of  Private  Property  at  Sea." 

7.  Exemptions  and  Restrictions  in  Capture  in  Maritime  War — 

Naval  War  College,  1913,  99-111,  132, 132-146.  Higgins,  "Hague 
Peace  Conferences,"  295-307,  395-406.  Westlake,  2d  ed.,  vol. 
II,  154-162. 

8.  Enemy  Character  in  Naval  Warfare — 

"The  Declaration  of  Paris,"  1856,  Hershey,  440-1.  "London  Naval 
Conference,"  Appendix  IV,  chaps.  V  and  VI.  Higgins,  "  Hague 
Peace  Conferences,"  600-6.     Westlake,  2d  ed.,  vol.  II,  163-177. 

9.  The  Procedure  of  the  Capture  and  Sending  of  a  Merchantman  as  a 

Prize — 

Stockton,  "Manual  of  International  Law  for  the  Use  of  Naval 
Officers,"  173-6.  Moore's  "Digest  of  International  Law,"  vol. 
VII,  514-527.    Hall,  "International  Law,"  6th  ed.,  451-2. 

10.  Destruction  of  Enemy  Vessels  as  Prizes — 

Article  50  of  Stockton's  "Laws  and  Usages  of  War  at  Sea." 
Moore's  "Digest  of  International  Law,"  vol.  VII,  516-518. 
Oppenheim,  "International  Law,"  2d  ed.,  vol.  II,  242-4. 

11.  Resistance  to  Search,  Recapture,  Ransom,  and  Safe  Conducts — 

Higgins,  "Naval  Conferences,"  608,  609.  "Declaration  of  Lon- 
don," Appendix  IV.  Moore's  "Digest,"  vol.  VII,  528,  535. 
Westlake,  2d  ed.,  vol.  II,  178,  182. 

12.  Bombardments  by  Naval  Forces  in  Time  of  War — 

Higgins,  "Peace  Conferences,"  346-357.  Hershey,  "Essentials  of 
International  Law,"  436-8.  Higgins,  "War  and  'the  Private 
Citizen,"  35-37. 

13.  Submarine  Cables  in  Time  of  War — 

Oppenheim,  "International  Law,"  2d  ed.,  vol.  II,  271,  272,  436. 
Westlake,  "International  Law,"  2d  ed.,  vol.  II,  116-119.  "Naval 
War  College  Topics  and  Discussions,"  1902,  7-19. 


CHAPTER  XXI 
AERIAL  WARFARE.    WIRELESS  TELEGRAPH 

163.  Aerial  Warfare  in  General. — By  this  term  is  included 
aerial  warfare  over  the  land  and  aerial  warfare  over  the  sea, 
or  what  has  been  termed  "  aerial  land  and  aerial  maritime  war- 
fare." ^ 

The  use  of  balloons  in  warfare  dates  back  to  the  time  of  the 
French  Revolution,  in  1793,  when,  in  accordance  with  a  proposi- 
tion of  Monge,  a  company  of  aeronauts  was  formed  and  balloons 
were  used  to  ascertain  the  movements  and  position  of  the  enemy. 
The  stationary  balloons  were  used  also  in  our  Civil  War,  for 
similar  observations.  They  were  also  used  in  the  Franco- 
German  War,  and  also  in  the  Russo-Japanese  War  in  the 
vicinity  of  Port  Arthur,  to  an  extent  that  led  Admiral  Alexieff 
to  place  balloonists  in  the  class  of  spies.  This  led  to  their 
elimination  from  that  class  in  the  second  Hague  conference, 
which,  however,  prohibited  the  launching  of  explosives  from 
balloons  for  a  term  of  years.  Since  then  the  development  of 
dirigible  balloons  and  aeroplanes  has  superseded  ordinary  free 
and  captive  spherical  balloons,  and  in  the  late  wars  between 
Turkey  and  Italy  and  Turkey  and  the  Balkan  nations  aircraft 
was  used  to  a  considerable  extent. 

As  the  use  of  such  aerial  craft  at  great  speed  in  Europe,  and 
even  in  America,  caused  flights  to  extend  over  many  countries 
and  across  territorial  waters  and  arms  of  the  sea,  the  question 
of  aerial  navigation  in  time  of  peace  and  war  soon  became  an 
international  one  and  has  led  to  several  international  confer- 

'  Wilmot  E.  Ellis,  "Aerial  Land  and  Aerial  Maritime  Warfare,"  A.  J. 
I.  L.,  1914,  no.  2,  vol.  VIIL 

365 


356  WAR-RELATIONS  OF  BELLIGERENTS 

ences  upon  the  subject  and  the  discussion  of  its  international 
phases  by  many  writers  and  jurists. 

The  Institute  of  International  Law  at  several  of  its  meetings 
discussed  the  subject  very  fully  and  at  first  was  adverse  to 
aerial  warfare;  but  as  all  military  countries  proceeded  with 
competitive  haste  to  develop  their  aerial  instruments  of  warfare, 
the  subject  could  not  be  dismissed  so  cavalierly,  even  by  so 
august  an  assemblage.  Hence  at  its  Madrid  meeting,  in  1911, 
it  was  voted  "that  aerial  war  is  permitted,  but  on  the  condition 
of  not  presenting  greater  dangers  than  land  or  sea  war  for  the 
persons  or  properties  of  the  peaceful  population."  ^  This  limi- 
tation may  be  considered  rather  vague  and  dubious  as  to  its 
prohibitory  effect. 

In  the  Turko-Italian  War  of  1911,  the  Italians  used  both 
airships  and  aeroplanes  in  the  reconnoissance  of  Turkish- 
Arabian  positions.  The  Turks,  as  a  rule,  succeeded  in  driving 
attacking  aircraft  to  a  considerable  altitude  by  infantry  fire, 
and  it  was  reported  that  they  obtained  fairly  good  results  with 
a  specially  mounted  Krupp  gun.  They  used  no  aircraft  of  their 
own.  During  the  Balkan  Wars,  all  of  the  belligerents  used 
aeroplanes,  manned  mostly  by  foreign  aviators.  Artillery  and 
infantry  attack  was  employed  to  such  good  effect  that  it  be- 
came exceedingly  dangerous  for  aeroplanes  to  descend  below 
four  thousand  feet.  Bombs  were  occasionally  dropped  with 
decided  moral  effect  on  Turkish  positions. 

The  first  attack  known  on  a  naval  vessel  occurred  in  July, 
1913,  during  the  Mexican  insurrection,  when  a  French  aviator 
in  the  service  of  the  "Constitutionalists"  attempted  in  Guay- 
mas  harbor  to  drop  several  bombs  on  a  Federal  gunboat.  No 
damage  was  done  on  either  side,  and  the  aeroplane  eventually 
escaped. 2 

The  fact  that  dirigible  balloons  of  a  so-called  battleship  type, 

'  "Annuaire,  Institute  of  Int.  Law,"  no.  24,  p.  346. 
^Wilmot  E.  Ellis,  "Aerial  Land  and  Aerial  Maritime  Warfare,"  A.  J. 
I.  L.,  1914,  vol.  VIII,  no.  2,  p.  261. 


AERIAL  WARFARE  357 

carry  a  crew  of  fifteen  men  and  are  equipped  with  several  ma- 
chine guns,  a  radioapparatus,  a  bomb-throwing  device,  a  search- 
light, and  over  a  ton  of  explosives  shows  probabilities  of  serious 
night  work,  while  French  aeroplanes,  in  turn,  are  to  be  armored 
so  that  they  can  fly  low.  These  possibilities  overcome  physical 
limitations  which  were  thought  to  be  inherent  to  aerial  war- 
fare.^ 

164.  The  Sovereignty  of  the  Air. — The  question  of  the  sov- 
ereignty of  the  air  has  been  discussed  very  fully  since  the 
growth  of  the  importance  of  aerial  craft,  and  in  a  number  of 
cases  municipal  laws  have  been  formulated  upon  the  subject 
both  in  respect  to  its  peace  and  warlike  phases.  International 
conferences  have  not  been  successful  as  yet  in  a  common  agree- 
ment upon  the  subject.  An  international  conference  upon  the 
subject  of  aerial  navigation  was  held  at  Paris,  in  April,  1910, 
which  adjourned  without  result  after  several  months'  delibera- 
tion, developing  as  it  did  such  differences  of  opinion  upon  the 
question  of  the  sovereignty  of  the  state  over  the  air  as  to  make 
progress  impossible. 

In  the  meantime,  various  states  have  been  enacting  laws 
governing  the  movements  of  aircraft  of  their  own  and  foreign 
states  with  reference  to  the  aerial  territory  above  their  land 
territory,  and  without  regard  to  questions  of  height  or  what 
may  be  called  servitudes  ol'  innocent  passage  of  air-ships.  Mr. 
Blewett  Lee  quotes  from  cbe  weekly  edition  of  the  London 
Times  of  August  1,  1913,  '  iie  following  item,  which  shows  an 
extension  of  the  conventif  law  upon  the  subject.  It  reads 
that: 

"A  Franco-German  conver  ion  has  been  signed  with  a  view 
to  regulating  air  traffic  bet  we  in  the  two  countries.  Private 
aircraft  will  be  at  liberty  to  cr  :)ss  the  frontiers  save  in  districts 
of  military  importance.  Si  ate  aircraft  may  cross  only  on  au- 
thorization of  the  other  state.     If  a  military  aircraft  is  forced 

*  Wilmot  E.  Ellis,  "Aerial  Land  and  Aerial  Maritime  Warfare,"  A.  J, 
I.  L.,  1914,  vol.  VIII,  no.  2,  p.  261. 


358  WAR-RELATIONS  OF  BELLIGERENTS 

over  the  frontier  by  weather,  it  is  to  come  down  at  once  and 
report  to  the  nearest  military  authority.  In  these  circumstances 
extraterritorial  advantages  will  be  granted  to  the  distressed 
aircraft,  and  it  may  not  be  detained."  ^ 

Local  laws  as  to  aerial  navigation,  but  not  touching  upon 
the  subject  of  the  jurisdiction  of  the  general  government,  have 
been  enacted  by  the  States  of  Connecticut  and  Massachusetts. 
It  is  left  for  the  general  government  to  determine  whether  rob- 
bery in  the  air  partakes  of  the  nature  of  piracy  or  not.  From 
the  discussion  upon  the  subject  of  sovereignty  of  the  air  en- 
gaged in  by  many  European  and  American  writers,  there  can 
be  found  three  (3)  distinct  views  given  as  enunciated  by  them: 

"1.  That  the  air  is  free,  reserving  to  subjacent  states  the 
right  to  adopt  such  measures  as  are  necessary  for  municipal 
and  private  security."  This  is  in  substance  the  principle  advo- 
cated by  M.  Fauchelle,  adopted  by  the  Institute  of  Interna- 
tional Law  in  1906  and  1911  and  by  the 
ternational  de  I'Aviation  in  1910. 

"2.  That  the  state  is  sovereign  ovei 
air,  but  there  is  a  right  of  innocent  passa; 
Westlake's  view,  presented  to  the  Inst 
Law,  in  1906,  at  Ghent. 

"3.  The  state  has  exclusi^ 
above  its  territory."     This 
Wilson,  Professor  Zitelmam  .  j^.  . 

"Law  of  the  Air,"  and  Do  ^ycklama  in  his  "Air 

Sovereignty."  ^ 

The  writer  inclines  to  the  e  given  by  the  late  Pro- 

fessor Westlake,  which  reco|  lalogy  of  the  marine 

league  or  the  territorial  juris(  marginal  waters  with 

its  territorial  control,  but  t  innocent  passage  in 

peace  time  and  holding  in  re  r  time  the  exercise  of 

complete  jurisdiction  and  suj  .s  to  the  area  of  com- 

»  Blewett  Lee,  A.J.I.  L.,  no.  3,  vol.  VII,  p.  496. 
»  Roy  E.  Curtis,  A.  J.  I.  L.,  vol.  VIII,  no.  2,  p.  265. 


AERIAL  WARFARE  359 

plete  freedom  and  permissible  war  operations,  this  extends  in 
time  of  peace  to  the  air  above  the  high  seas  and  above  the 
territory  of  the  national  owner  of  the  air  craft  and  in  war 
time  to  the  superincumbent  air  of  the  enemy.  It  is  considered 
by  military  authorities  of  the  United  States  that  the  act  of 
Congress  in  regard  to  military  secrets  provides  now  for  the 
■"'xercise  of  its  jurisdiction  in  the  air  above  military  works  and 
fortifications. 

This  matter  of  the  sovereignty  of  the  air,  so  jealously  guarded 
by  the  great  naval  and  military  powers  of  Europe,  can  only  be 
regulated  in  its  international  phases  by  international  conven- 
tion more  or  less  general  in  extent. 

165.    Aerial  Warfare  as  Affected  by  the  Laws  of  War. — 

The  second  Hague  conference  readopted  Declaration  I,  concern- 
ing the  discharge  of  projectiles  and  explosives  from  balloons, 
by  which  "  the  contracting  powers  agree  to  prohibit  for  a  period 
extending  to  the  close  of  the  third  peace  conference  the  dis- 
charge of  projectiles  and  explosives  from  balloons  or  by  other 
new  methods  of  a  similar  nature."  ^  This  declaration  is,  of 
course,  only  binding  upon  the  contracting  powers  and  only 
in  case  of  a  war  between  contracting  belligerents.  The  decla- 
ration was  signed  by  twenty-seven  of  the  forty-four  powers 
present,  including  the  United  States.  The  non-signatory 
powers  include  Germany,  Spain,  France,  Italy,  Japan,  Mexico, 
Russia,  and  Sweden.  Notwithstanding  the  progress  of  humani- 
tarian methods,  the  development  of  aerial  warfare  will  most 
probably  prevent  the  renewal  of  this  declaration  after  its  ex- 
piration and  allow  its  usage  in  most  European  wars  at  present. 
In  Article  24  of  the  laws  of  war  on  land  as  adopted  by  the 
second  Hague  conference  it  is  forbidden  to  attack  or  bombard, 
by  any  means  whatever,  towns,  villages,  habitations,  and  build- 
ings which  are  not  defended.  This  may  be  construed  to  be 
equally  applicable  to  naval  or  military  attacks.  It  is  unlim- 
ited in  its  duration  of  time,  and  this  convention  has  been 
'  Higgins,  "Peace  Conferences,"  pp.  484-491. 


360  WAK-RELATIONS  OF  BELLIGERENTS 

signed  by  all  the  powers  except  China,  Spain,  and  Nicara 
It  can  hardly  be  said  to  prevent  an  attack  upon  buildings 
defended  of  themselves,  but  located  within  the  limits 
defended  town.^ 

In  the  same  convention  in  the  second  paragraph  of  Ai 
29,  on  the  subject  of  spies,  it  is  provided  that  persons  se] 
balloons  to  deliver  despatches  and  generally  to  maintain 
munication  between  the  various  parts  of  an  army  or  a  terr 
are  not  to  be  considered  as  spies.    As  to  the  use  of  balloo 
obtain  information  such  usage  can  properly  be  classed  ai 
scouting  operations,  and  the  operators  should  not  be  cL 
as  spies,  whether  soldiers  or  civilians,  as  they  do  not 
under  the  head  of  those  persons  who  are  acting  clandest 
or  on  false  pretences.    If  captured,  such  persons  can  be  ] 
prisoners  of  war.'^    They  are  also  in  the  same  category  as 
sons  mentioned  in  Article  11  of  the  Convention  X  of  the  S( 
Hague,  who,  when  sick  or  wounded,  shall  be  respected  and 
tended  by  the  captors.' 

In  Article  No.  53  of  Convention  IV,  in  treating  of  the  occu- 
pation of  an  enemy's  country,  it  is  stated  that  all  appliances 
whether  on  land,  at  sea,  or  in  the  air,  adapted  for  the  transmis- 
sion of  news,  or  for  the  transport  of  persons  or  goods,  apart 
from  cases  governed  by  maritime  law,  depots  of  arms,  and,  gen- 
erally, all  kinds  of  war  material,  may  be  seized,  even  though 
belonging  to  private  persons,  but  they  must  be  restored  and 
indemnities  for  them  regulated  at  the  peace. 

1 66.  Wireless  Telegraphy. — Wireless  or  radio-telegraphy 
has  come  into  use  and  into  warfare  of  late  years  as  the 
Hertzian  waves  which  it  produces  were  only  discovered  in 
1887.  The  present  lack  of  control  of  the  direction  in  which 
the  waves  may  move  differentiates  the  service  from  that  of 
wire  telegraphy  and  causes  a  weakness  in  transmitting  and  re- 

»  Higgins,  "Hague  Conferences,"  pp.  237  and  269,  270. 
*  Higgins,  "Hague  Conferences,"  p.  239. 
'  Higgins,  "Hague  Conferences,"  p.  369. 


AERIAL  WARFARE  361 

ceiving  the  Hertzian  waves  in  that  the  information  of  military 
or  naval  matters  can  either  be  shared  by  those  within  reach 
and  likewise  interrupted  or  to  an  extent  substituted.  To  this 
confusion  is  added  a  great  diversity  of  systems  in  use,  causing 
a  need  for  governmental  and  international  regulation.  It  is 
generally  conceded  that  the  right  to  legislate  for  wireless  teleg- 
raphy is  within  the  power  and  right  of  the  state. 

The  following  references  are  made  to  wireless  telegraphy  in 
the  adopted  conventions  of  The  Hague  and  London  naval 
conferences.  In  Convention  IV,  giving  the  laws  and  customs 
of  war  on  land,  m  the  part  treating  of  military  authority  over 
the  territory  of  the  hostile  state,  it  is  stated  that  "  all  appliances, 
whether  on  land,  at  sea,  or  in  the  air,  adapted  for  the  trans- 
mission of  news,  or  for  the  transport  of  persons  or  goods,  apart 
from  cases  governed  by  maritime  law,  depots  of  arms,  and, 
generally,  all  kinds  of  war  material,  may  be  seized,  even  though 
belonging  to  private  persons;  but  they  must  be  restored  and 
indemnities  for  them  regulated  at  the  peace."  ^ 

Article  3  of  Convention  V  of  the  second  Hague  Conference 
reads  as  follows: 

"Belligerents  are  also  forbidden — 

"  (a)  To  erect  on  the  territory  of  a  neutral  a  wireless-teleg- 
raphy station  or  any  apparatus  intended  to  serve  as  a  means 
of  communication  with  belligerent  forces  on  land  or  sea. 

"  (6)  To  make  any  use  of  any  installation  of  this  kind  estab- 
lished by  them  before  the  war  on  the  territory  of  a  neutral 
power  for  purely  military  purposes  and  not  previously  opened 
for  the  service  of  public  messages."  "^ 

This  article  is  the  result  of  the  experience  of  the  Russo- 
Japanese  War.  The  Russians  erected  a  wireless  telegraphic 
station  at  Chif  u  on  the  Gulf  of  Pechili,  on  the  opposite  side  of 
which  Port  Arthur,  then  under  siege,  was  placed.  By  these 
means  the  forces  of  the  garrison,  though  under  a  close  siege  by 

*  Higgins,  "Hague  Conferences,"  p.  251. 

'  Higgiiifl,  "Hague  Peace  Conferences,"  pp.  282,  291. 


362  WAR-RELATIONS  OF  BELLIGERENTS 

sea  and  land,  were  enabled  to  keep  up  communication 
their  home  government  for  military  or  other  purposes.^ 
trals,  by  Article  8  of  the  same  convention,  are  not  bound  1 
bid  or  restrict  this  use  on  behalf  of  belligerents;  but  if  thi 
the  restriction  must  be  applied  impartially. 

In  the  declaration  of  London,  under  the  head  of  contra 
it  is  declared  in  Article  24,  Clause  7,  that  the  following  ( 
treated  as  conditional  contraband:  "material  for  teleg: 
wireless  telegraphs,  and  telephones."^ 

In  Article  45  of  the  declaration  of  London,  the  following 
ences  would  include  wireless-telegraph  service.    It  ca) 
the  condemnation  of  a  neutral,  as  if  the  vessel  carried  c 
band  for  unneutral  service,  if  a  neutral  vessel  is  on  a  \ 
specially  undertaken  with  a  view  to  the  transmission  of  i 
gence  in  the  interest  of  the  enemy.     In  Article  46  it  is  provided 
that  a  neutral  vessel  will  be  condemned,  as  if  she  were  an  enemy 
merchant  vessel,  if  she  is  exclusively  devoted  at  the  time  in  the 
transmission  of  intelligence  in  the  interest  of  the  enemy.' 

After  a  discussion  upon  wireless  telegraphy  at  the  United 
States  Naval  War  College  the  following  summary  and  con- 
clusions were  reached: 

"  From  practice  as  shown  in  various  states,  from  the  opinion 
of  the  courts  and  of  writers,  from  the  votes  of  conferences,  and 
from  international  agreements,  it  is  evident  that  the  state 
within  whose  jurisdiction  a  wireless-telegraph  apparatus  is  or 
passes  is  and  will  be  authorized  to  exercise  a  degree  of  control 
over  its  use.  The  responsibility  resting  upon  such  will  be 
large." 

The  general  conclusions  reached  are: 

"  (a)  A  belligerent  may  regulate  or  prohibit  the  use  of  wire- 
less telegraph  within  the  area  of  hostilities. 

"  (6)  A  neutral  state  should  use  reasonable  care  to  prevent 

» T.  J.  Lawrence,  "War  and  Neutrality  in  the  Far  East,"  p.  218. 

'  See  Appendix  IV. 

»  See  Appendix  IV,  and  Higgina,  "Hague  Conferences,"  pp.  593-6. 


AERIAL  WARFARE  363 

within  its  Jurisdiction  the  unneutral  use  of  wireless  tele- 
graph. 

"(c)  Unneutral  use  of  wireless  telegraph  on  board  a  vessel 
makes  the  vessel  liable  to  the  penalty  of  capture  by  a  belligerent 
or  to  confiscation  or  sequestration  of  the  apparatus  or  of  the 
vessel  or  of  both  by  a  neutral. 

"  (d)  A  vessel  intentionally  aiding  a  belligerent  by  the  use  of 
wireless  telegraph  is  liable  to  penalty  until  the  end  of  the  war."  ^ 

TOPICS  AND  REFERENCES 

1.  Aerial  Warfare  in  General — 

Hearn,  "Airships  in  Peace  and  War,"  2d  ed.,  1910.  "International 
Law  Situations  and  Topics,"  United  States  Naval  War  College, 
1907,  1911-12.  "Aerial  Land  and  Aerial  Maritime  Warfare," 
WUmot  E.  EUis,  A.J.I.  L.,  vol.  VIII,  no.  2,  256,  etc. 

2.  The  Sovereignty  of  the  Air — 

"Sovereignty  of  the  Air,"  Blewett  Lee,  A.  J.  I.  L.,  vol.  VII,  no.  3, 
470,  etc.  "The  Law  of  the  Air  Ship,"  Governor  Simeon  E. 
Baldwin,  A.  J.  I.  L.,  vol.  IV,  95.  "Annuaire  de  I'lnstitut  de 
Droit  International,"  1906,  1911. 

3.  Aerial  Warfare  as  Affected  by  the  Laws  of  War — 

Higgins,  "Hague  Peace  Conference,"  484-491,  etc.  Westlake, 
"International  Law,"  2d  ed.,  vol.  II,  76,  87,  90.  Hershey's 
"Essentials  of  International  Law,"  484-451. 

4.  Wireless  Tegraphy — 

United  States  Naval  War  College,  "International  Law  Situations," 
1907,  138-176.  Moore's  "Digest  of  International  Law,"  vol. 
VII,  941.     Hershey's  "Essentials  of  International  Law,"  449,  451. 

» "Int.  Law  Situations,"  Naval  War  College,  1907,  pp.  175,  176. 


CHAPTER  XXII 

MILITARY  OCCUPATION.    TERMINATION  OF  V,  IR. 
CONQUEST  AND  CESSION 


<Ut  kXt 


167.    The  Meaning  of  Military  Occupation. — In  the  foi 

convention  of  the  second  Hague  conference,  treating  of  the  laws 
and  customs  of  war  on  land,  the  definition  of  military  occupa- 
tion is  given,  which  may  be  considered  as  representing  what 
is  sanctioned  by  international  law  and  held  as  binding  upon 
the  powers  which  are  signatory  to  this  convention. 

It  states  that: 

"Territory  is  considered  to  be  occupied  when  it  is  actually 
placed  under  the  authority  of  the  hostile  army. 

"The  occupation  applies  only  to  the  territories  where  such 
authority  is  established  and  can  be  exercised." 

As  to  what  is  the  sufficient  establishment  of  the  occupying 
military  authority  there  may  be  a  question;  but  the  following 
quotations  from  leading  authorities  upon  the  matter  may 
amplify  and  clarify  this  article  to  a  suflBcient  degree: 

"In  trying  to  express  more  precisely  the  spirit  of  Article  42 
of  this  convention,"  Westlake  says,  "we  can  scarcely  do  better 
than  quote  Hall,  who  says  the  just  requirements  of  an  invader 
'might  probably  be  satisfied,  and  at  the  same  time  sufficient 
freedom  of  action  might  be  secured  to  the  invaded  nation,  by 
considering  that  a  territory  is  occupied  as  soon  as  local  resis- 
tance to  the  actual  presence  of  the  enemy  has  ceased  and  con- 
tinues to  be  occupied  so  long  as  the  enemy's  army  is  on  the 
spot,  or  so  long  as  it  covers  it,  unless  the  operations  of  the 
national  or  an  allied  army  or  local  insurrection  have  re-estab- 

364 


MILITARY  OCCUPATION  365 

I?  shed  the  public  exercise  of  the  legitimate  sovereign  au- 
thority.'"» 

General  George  B.  Davis,  U.  S.  A,,  probably  the  best  Ameri- 
can authority  upon  the  law  of  war,  says  more  fully  that  "a 
portion  of  the  territory  of  the  enemy  is,  therefore,  said  to  be 
occupied  when  the  authority  of  the  former  government  has 
been  overthrown  within  its  boundaries  and  it  is  held  by  a 
sufficient  military  force  to  prevent  uprising,  to  protect  life  and 
property,  and  secure  the  prevalence  of  order  throughout  the 
occupied  district.  Occupation  is  thus  seen  to  be  a  question  of 
fact  and  can  never  be  presumed ;  if  a  territory  frees  itself  from 
the  exercise  of  this  authority,  it  ceases  to  be  regarded  as  occu- 
pied. 

"In  accordance  with  the  present  view  of  occupation,  there- 
fore, no  permanent  change  ensues  in  the  national  character  or 
allegiance  of  the  population  of  an  occupied  territory  as  a  result 
of  the  mere  fact  of  occupation.  The  invader  maintains  him- 
self in  such  territory  by  force.  The  relation  existing  between 
the  commanding  general  of  the  occupying  force  and  the  popula- 
tion is  not  that  of  allegiance  but  of  constrained  obedience,  and 
it  exists  only  so  long  as  he  is  able  to  compel  such  obedience  by 
force.  The  authority  exercised  by  an  invader  is  something 
entirely  different  from  that  exercised  by  the  legitimate  govern- 
ment and  rests  upon  an  entirely  different  basis.  In  most  re- 
spects it  is  greater  and  more  extensive  than  the  latter  and  has 
no  foundation  in  the  consent  of  the  governed. 

"The  legitimate  government  of  the  occupied  territory  is 
temporarily  displaced  and  overthrown,  the  functions  of  its 
officers  and  agents  are  suspended,  and  the  territory  is  ruled  by 
martial  law.  The  ordinary  civil  laws  of  the  country  continue 
to  exist  and  the  courts  are  permitted  to  administer  them,  but 
they  do  so  at  the  pleasure  of  the  commanding  general  of  the 
occupying  forces.     No  guarantees,  constitutional  or  otherwise, 

'  Hall,  6th  ed.,  p.  480,  quoted  by  Wcetlake,  "Int.  Law,"  2d  ed.,  vol.  II, 
pp.  94,  etc. 


366  WAR-RELATIONS  OF  BELLIGERENTS 

are  efFective  against  his  will,  and  his  consent  to  their  exii 
or  execution  may  be  withdrawn  at  any  time.  The  occuj 
is  military,  not  civil,  and  the  invader,  in  carrying  on  hh 
ernment,  is  controlled  by  various  considerations,  among  v 
from  the  necessities  of  the  case,  those  of  a  military  cha; 
are  likely  to  prevail."^ 

i68.  The  Authority  of  the  Military  Occupant. — Arti( 
of  The  Hague  Convention  IV  says  that: 

"The  authority  of  the  legitimate  power  having  aci 
passed  into  the  hands  of  the  occupant,  the  latter  shall  ta 
steps  in  his  power  to  re-establish  and  insure,  as  far  as  po£ 
public  order  and  safety,  while  respecting,  unless  absol 
prevented,  the  laws  in  force  in  the  country." ^ 

This  authority  for  military  government  is  the  fact  of  the 
occupation.  A  proclamation  or  public  notice  to  the  inhabi- 
tants informing  them  of  the  extent  of  the  occupation  and  the 
powers  proposed  to  be  exercised  is  customary  but  not  neces- 
sary. Military  government,  whether  administered  by  officers 
of  the  navy,  or  those  of  the  army  of  the  belligerent,  or  by  civil- 
ians left  in  office,  or  by  other  civilians  appointed  by  the 
military  commander,  is  the  government  of  and  for  all  of 
the  inhabitants,  native  or  foreign.  The  local  laws  or  ordinances 
may  remain  in  force,  and,  in  general,  as  a  matter  of  conve- 
nience, should  be  subject,  however,  to  their  being  in  whole  or 
in  part  suspended  and  others  substituted  at  the  discretion  of 
the  governing  military  authority.' 

"Though  the  powers  of  the  military  occupant  are  absolute 
and  supreme,  and  immediately  operate  upon  the  political  con- 
dition of  the  inhabitants,  the  municipal  laws  of  the  conquered 
territory,  such  as  affect  private  rights  of  person  and  property 
and  provide  for  the  punishment  of  crime,  are  considered  as 
continuing  in  force  so  far  as  they  are  compatible  with  the  new 

» Davis,  "Int.  Law,"  3d  ed.,  pp.  330,  331. 
*  Higgins,  "Hague  Conferences,"  p.  245. 
•Stockton's  "Manual,"  pp.  203,  204. 


MILITARY  OCCUPATION  367 

order  of  things,  until  they  are  suspended  or  superseded  by  the 
occupying  belligerent;  and  in  practice  they  are  not  usually 
abrogated,  but  are  allowed  to  remain  in  force  and  to  be  ad- 
ministered by  the  ordinary  tribunals,  substantially  as  they 
were  before  the  occupation."^  In  all  cases  the  authority  of 
the  occupant  must  accord  with  the  laws  and  usages  of  war. 

169.  Limitations  to  the  Military  Authority  of  the  Occupant. 
— Since  The  Hague  convention  on  the  laws  and  customs  of 
war  the  following  limitations  to  the  military  authority  of  the 
occupant  over  the  territory  of  the  hostile  state  have  been 
agreed  upon  by  the  signatories  to  this  convention,  to  whom 
they  now  apply,  the  United  States  being  among  them: 

"  Article  44.  Any  compulsion  on  the  population  of  occupied 
territory  to  furnish  information  about  the  army  of  the  other 
belligerent  or  about  his  means  of  defence  is  forbidden. 

"  Article  45.  Any  compulsion  on  the  population  of  occupied 
territory  to  take  the  oath  to  the  hostile  power  is  forbidden. 

"Article  46.  Family  honor  and  rights,  the  lives  of  individ- 
uals and  private  property,  as  well  as  religious  convictions  and 
liberty  of  worship  must  be  respected. 

"Private  property  cannot  be  confiscated. 

"Article  47.     Pillage  is  formally  prohibited. 

"Article  48.  If,  in  the  territory  occupied,  the  occupant  col- 
lects the  taxes,  dues,  and  tolls  imposed  for  the  benefit  of  the 
state,  he  shall  do  it,  as  far  as  possible,  in  accordance  with  the 
rules  in  existence  and  the  assessment  in  force  and  will,  in  con- 
sequence, be  bound  to  defray  the  expenses  of  the  administra- 
tion of  the  occupied  territory  on  the  same  scale  as  that  to  which 
the  legitimate  government  was  bound. 

"Article  49.  If,  besides  the  taxes  referred  to  in  the  preced- 
ing article,  the  occupant  levies  other  money  contributions  in 
the  occupied  territory,  this  can  only  be  for  military  necessi- 
ties or  the  administration  of  such  territory. 

1  Order  of  President  McKinley,  July  18,  1898;  Moore's  "Digest,"  vol, 
VII,  p.  262. 


368  WAR-RELATIONS  OF  BELLIGERENTS 

"Article  50.  No  general  penalty,  pecuniary  or  ott 
can  be  inflicted  on  the  population  on  account  of  the  act 
dividuals  for  which  it  cannot  be  regarded  as  collecti\ 
sponsible." 

This  is  held  by  Holland  not  to  prejudge  the  mattei 
prisals  and  by  Westlake  not  to  prevent  the  paymei 
ransom  which  an  invader  may  require  upon  condition  ( 
ing  a  place  not  yet  occupied  from  the  damage  that  w( 
suit  from  a  lawful  operation  of  war. 

"Article  51.  No  contribution  shall  be  collected 
under  a  written  order  and  on  the  responsibility  of 
mander-in-chief. 

"  This  levy  shall  only  take  place,  as  far  as  possible.  In  accor- 
dance with  the  rules  in  existence  and  the  assessment  in  force 
for  taxes. 

"For  every  contribution  a  receipt  shall  be  given  to  the 
payee." 

"The  receipt  mentioned  in  this  article,"  says  Holland,  "is 
intended  as  evidence  that  money,  goods,  or  services  have  been 
exacted,  but  implies,  in  itself,  no  promise  to  pay  on  the  part 
of  the  occupant.  He  does  not  even  thereby  bind  his  govern- 
ment, if  victorious,  to  stipulate  in  the  treaty  of  peace  that  the 
receipts  shall  be  honored  by  the  government  of  the  territory 
which  has  been  under  occupation.  A  Swiss  proposal  making 
it  obligatory  to  honor  the  receipts  mentioned  in  this  and  the 
following  articles,  was  indeed  deliberately  rejected  at  the  first 
Hague  conference."^ 

"Article  52.  Neither  requisitions  in  kind  nor  services  can 
be  demanded  from  communes  or  inhabitants  except  for  the 
necessities  of  the  army  of  occupation.  They  must  be  in  pro- 
portion to  the  resources  of  the  country  and  of  such  a  nature 
as  not  to  imply  for  the  population  any  obligation  to  take  part 
in  military  operations  against  their  country. 

"These  requisitions  and  services  shall  only  be  demanded  on 
1  Holland,  "Laws  of  War/'  1908,  p.  55. 


MILITARY  OCCUPATION  369 

the  authority  of  the  commander  in  the  locality  occupied. 
Supplies  in  kind  shall  as  far  as  possible  be  paid  in  ready  money; 
if  not,  their  receipt  shall  be  acknowledged  and  the  payment  of 
the  amount  due  shall  be  made  as  soon  as  possible." 

"Requisitions  in  kind,"  says  Holland,  "may,  of  course,  re- 
late not  only  to  provisions  but  also  to  horses,  vehicles,  clothing, 
tobacco,  etc.  The  services  here  intended  are  such  as  would 
be  rendered  by  drivers,  blacksmiths,  artisans  and  laborers 
of  all  kinds,  as  also  by  the  occupiers  of  houses  upon  which 
troops  are  quartered.  .  .  .  Payment  for  supplies  is  even  politic, 
as  decreasing  the  chances  of  their  being  concealed."  ^ 

On  this  article  Westlake  says,  in  discussing  the  subject,  that 
"  the  money,  things,  and  services  which  invaders  take  from  the 
inhabitants  of  the  enemy  territory  are  now^  classed  as  contri- 
butions when  they  are  money,  requisitions  when  they  are 
things  or  services.  .  .  .  Contributions  have  been  dealt  with 
in  Articles  48  to  51  of  The  Hague  Convention  IV,  and  the  code 
now  proceeds  to  deal  with  requisitions." 

He  then  proceeds  to  make  some  general  observations  upon 
the  subject  of  contributions  and  requisitions,  the  first  being 
that  the  character  of  the  laws  of  war,  "  as  being  always  restric- 
tive and  never  giving  a  positive  sanction  to  violence,  is  plainly 
indicated  in  the  articles  in  question.  No  right  to  levy  contri- 
butions or  make  requisitions  is  declared  by  Articles  48  and  49 
as  hypothetical  on  the  payment  of  the  money  being  imposed, 
and  Articles  50,  51,  and  52  are  expressly  provisions  of  restraint." 

"If  we  ask  what  at  different  times  it  has  not  been  pro- 
hibited to  take  from  the  inhabitants  of  the  enemy  territory, 
the  answ^er  for  the  oldest  time  is  that  nothing  was  prohibited 
to  be  taken  from  them.  Neither  in  antiquity  nor  under  the 
doctrine  of  courir  sus  had  the  inhabitants  of  the  enemy  terri- 
tory any  rights  against  the  invader.  .  .  .  But  when  the  view 
prevailed  that  occupation  was  conquest,  as  soon  as  his  inroad 
became  an  occupation  he  was  placed  in  a  new  relation  to  the 
»  Holland,  "Laws  of  War,"  p.  56. 


370  WAR-RELATIONS  OF  BELLIGERENTS 

inhabitants  of  the  occupied  territory.    They  would  no 
be  properly  regarded  as  his  enemies  but  as  his  subjects,  a 
worst  government  that  ever  existed  with  the  pretens 
being  civilized  never  dreamed  of  leaving  the  property,  n 
and  persons  of  its  subjects,  not  chargeable  with  active  c 
tion  to  it,  to  the  arbitrary  will  of  its  military  commandei 
Lastly  there  has  come  the  modern  doctrine  that  betwe 
passive  citizen  and  the  enemy  state  war  introduces  a  r< 
by  virtue  of  which  the  former  may  be  made  to  suffer  wl 
the  purpose  of  the  war  it  is  'necessary'  or  'natural'  for  t 
ter  to  inflict.    Combine  with  this  the  fact  that  most  nati — ^  — 
not  consider  themselves  rich  enough  to  conduct  a  campaign  on 
enemy's  territory  without  availing  themselves  of  the  resources 
of  that  territory,  and  the  exaction  of  requisitions  and  con- 
tributions is  justified  in  the  measure  in  which  the  invader's 
own  resources  are  deemed  by  him  to  be  insufficient.     In  sum, 
requisitions  and  contributions  have  continued  to  be  exacted, 
by  force  of  tradition  and  circumstances,  through  a  series  of 
successive  theoretical  views,  none  of  which  has  been  capable 
of  fixing  a  limit  to  them."  ^ 

"Hostages  are  sometimes  seized,"  says  Hall,  "by  way  of 
precaution  in  order  to  guarantee  the  maintenance  of  order  in 
occupied  territory.  .  .  .  The  seizure  of  hostages  is  less  often 
used  as  a  guarantee  against  insurrection  than  as  a  momentary 
expedient  or  as  a  protection  against  special  dangers  which,  it 
is  supposed,  cannot  otherwise  be  met.  In  such  cases  a  bellig- 
erent is  sometimes  drawn  by  the  convenience  of  intimidation 
into  acts  which  are  clearly  in  excess  of  his  rights.  In  1870  the 
Germans  ordered  that,  '  railways  having  been  frequently  dam- 
aged, the  trains  shall  be  accompanied  by  well-known  and  re- 
spected persons  inhabiting  the  towns  or  other  localities  in  the 
neighborhood  of  the  lines.  These  persons  shall  be  placed  upon 
the  engine,  so  that  it  may  be  understood  that  in  every  accident 
caused  by  the  hostility  of  the  inhabitants  their  compatriots  will 
» Westlake,  "Int.  Law,"  2d  ed.,  vol.  II,  pp.  107-9. 


MILITARY  OCCUPATION  371 

be  the  first  to  suffer.  .  .  .'  The  order  was  universally  and  justly 
reprobated  on  the  ground  that  it  violated  the  principle  which 
denies  to  a  belligerent  any  further  power  than  that  of  keeping 
his  hostage  in  confinement;  and  it  is  for  governments  to  con- 
sider whether  it  is  worth  while  to  retain  a  right  which  can  only 
be  made  effective  by  means  of  an  illegal  brutality  which  ex- 
isting opinion  refuses  to  condone."  ^ 

Article  53  of  The  Hague  Convention  IV  reads  that: 

"An  army  of  occupation  can  only  take  possession  of  cash, 
funds,  and  realizable  securities  which  are  strictly  the  property 
of  the  state,  depots  of  arms,  means  of  transport,  stores  and 
supplies,  and,  generally,  all  movable  property  of  the  state  which 
may  be  used  for  operations  of  war. 

"All  appliances,  whether  on  land,  at  sea,  or  in  the  air,  adapted 
for  the  transmission  of  news  or  for  the  transport  of  persons  or 
goods,  apart  from  cases  governed  by  maritime  law,  depots  of 
arms,  and,  generally,  all  kinds  of  war  material,  may  be  seized, 
even  though  belonging  to  private  persons,  but  they  must  be 
restored  and  indemnities  for  them  regulated  at  the  peace." 

Article  54  reads  that: 

"Submarine  cables  connecting  an  occupied  territory  with  a 
neutral  one  shall  not  be  seized  or  destroyed  except  in  case 
of  absolute  necessity.  They  also  must  be  restored  and  the 
indemnities  for  them  regulated  at  the  peace." 

This  has  also  been  discussed  elsewhere.^ 

Article  55  goes  on  to  say  that: 

"  The  occupying  state  shall  regard  itself  as  only  administrator 
and  usufructuary  of  the  public  buildings,  immovables,  forests, 
and  agricultural  undertakings  belonging  to  the  enemy  state  and 
situated  in  the  occupied  country.  It  must  protect  the  capital 
of  those  properties  and  administer  it  according  to  the  rules  of 
usufruct  (life  tenancy)." 

The  rules  of  usufruct  require  that  the  right  must  be  so  used 
that  its  capital  or  substance  receives  no  injury. 

>  Hall,  "Int.  Law,"  6th  ed.,  pp.  470,  47L  » See  p.  351,  ante. 


372  WAR-RELATIONS  OF  BELLIGERENTS 

Article  56  reads  that: 

"The  property  of  communes  and  that  of  institutions  dedi- 
cated to  reUglous  worship,  charity,  education,  art,  or  science, 
even  when  belonging  to  the  state,  shall  be  treated  in  the  same 
manner  as  private  property. 

"Any  seizure  or  destruction  of,  or  intentional  damage  done 
to,  such  institutions,  historical  monuments,  or  works  of  art 
or  science  is  prohibited  and  should  be  made  the  subject  of 
prosecution." 

Under  property  of  communes  or  local  bodies,  T.  E.  Holland 
claims  that  town  halls,  waterworks,  gas  works  or  police  stations 
may  be  included.^ 

In  concluding  this  portion  of  Convention  IV  of  the  second 
Hague  conference  containing  the  limitations  placed  by  it  upon 
military  authority  over  the  territory  of  the  hostile  state,  it 
may  be  well  in  regard  to  the  points  omitted  or  partially  treated 
in  the  articles  that  have  been  given  in  the  preceding  paragraphs 
to  quote  once  more  from  the  main  body  of  the  convention  pre- 
ceding the  regulations.     It  says  that: 

"Until  a  more  complete  code  of  the  laws  of  war  can  be 
issued,  the  high  contracting  parties  think  it  expedient  to  de- 
clare that  in  cases  not  included  in  the  regulations  adopted  by 
them,  populations  and  belligerents  remain  under  the  protection 
and  the  rule  of  the  principles  of  the  law  of  nations,  as  they  re- 
sult from  the  usages  established  between  civilized  nations,  from 
the  laws  of  humanity,  and  the  requirements  of  the  public  con- 
science." 2 

170.  Termination  of  War. — War  between  civilized  states 
almost  always  ends  by  the  conclusion  of  a  treaty  of  peace. 
Sometimes,  however,  the  war  fades  away  to  an  end  by  the 
inability  or  the  want  of  desire  to  continue  hostilities,  and  no 
treaty  is  made  at  the  time,  as  in  the  war  between  Spain  and 
France  in  1720,  the  war  between  Spain  and  Chile  in  1867,  and 

» T.  E.  HoUand,  "Laws  of  War,"  p.  59. 

*  Higgins,  "Hague  Peace  Conferences,"  p.  211. 


MILITARY  OCCUPATION  373 

between  France  and  Mexico  in  1864-7;  and  at  other  times  it 
also  ends  without  treaty  when  the  nationality  or  existence  of 
one  of  the  belligerents  disappears,  as  in  the  case  of  the  third 
partition  of  Poland  or  of  the  fall  of  the  Southern  Confederacy 
after  the  American  Civil  War  of  1861-5. 

"^Vhen  either  belligerent  believes  the  object  of  the  war  to 
have  been  attained  or  is  convinced  that  it  is  impossible  of 
attainment,  or  when  the  military  operations  of  either  power 
have  been  so  successful  as  to  determine  the  fortune  of  war 
decisively  in  its  favor,  a  general  truce  is  agreed  upon  and  ne- 
gotiations are  entered  into  with  a  view  to  the  restoration  of 
peace.  There  is  no  rule  of  positive  obligation  as  to  the  manner 
in  which  such  negotiations  shall  be  established.  The  initiative 
may  be  taken  by  either  belligerent,  either  directly  with  the 
hostile  state  or  indirectly  through  a  neutral  power.  A  neutral 
state  may  tender  its  good  offices  to  either  belligerent,  at  any 
time  during  the  continuance  of  hostilities.  The  purpose  of  the 
preliminary  negotiations  is  to  arrange  for  a  meeting  of  duly 
accredited  representatives  charged  with  the  preparation  of  a 
treaty  of  peace.  "^ 

"Since,"  says  Oppenheim,  "in  the  case  of  termination  of 
war  through  simple  cessation  of  hostilities  no  treaty  of  peace 
embodies  the  conditions  of  peace  between  the  former  bellig- 
erents, the  question  arises  whether  the  status  which  existed  be- 
tween the  parties  before  the  outbreak  of  war,  the  status  quo  ante 
bellum,  should  be  revived  or  the  status  which  exists  between 
the  parties  at  the  time  when  they  simply  ceased  hostilities,  the 
status  quo  post  bellum  (the  uti  possidetis),  can  be  upheld.  The 
majority  of  publicists  correctly  maintained  that  the  status 
which  exists  at  the  time  of  cessation  of  hostilities  becomes 
silently  recognized  through  such  cessation,  and  is,  therefore, 
the  basis  of  the  future  relations  of  the  parties.  This  question 
is  of  the  greatest  importance  regarding  enemy  territory  mili- 
tarily occupied  by  a  belligerent  at  the  time  hostilities  cease, 
'  Davis,  "Elements  of  Int.  Law,"  pp.  342-3, 


374  WAR-RELATIONS  OF  BELLIGERENTS 

According  to  the  correct  opinion  such  territory  can  be  annexed 
by  the  occupier,  the  adversary,  through  the  cessation  of  hostiH- 
ties,  having  dropped  all  rights  he  possessed  over  such  territory. 
On  the  other  hand,  this  termination  of  war  through  cessation 
of  hostilities  contains  no  decision  regarding  such  claims  of  the 
parties  as  have  not  been  settled  by  the  actual  position  of  affairs 
at  the  termination  of  hostilities,  and  it  remains  for  the  parties 
to  settle  them  by  special  agreement  or  to  let  them  stand  over."^ 
This  seems  to  the  writer  to  be  a  sound  view  of  the  situation 
at  the  conclusion  of  a  war  without  a  treaty. 

171.  Treaty  of  Peace. — The  normal  way  of  terminating 
war  is  by  a  treaty  of  peace.  In  a  general  way  it  may  be  said 
that  a  state  which  possesses  the  right  of  making  war  has  the 
right  of  making  peace.  If  war  has  been  carried  on  by  an  alli- 
ance with  other  states  on  either  side  it  is  unjustifiable,  except 
in  certain  extreme  cases,  like  that  of  self-preservation,  for  one 
state  to  make  peace  or  to  treat  without  mutual  consent.  So 
far  as  the  state  is  concerned  its  proper  representative  is  the 
government  de  facto  duly  recognized  as  such.  For  example, 
the  head  of  a  state  who  is  a  prisoner  of  war,  even  if  he  had  the 
constitutional  power,  has  not  the  actual  competency  to  make 
peace;  as  Oppenheim  says,  "though  he  does  not  by  becoming 
a  prisoner  of  war  lose  his  position,  he  nevertheless  thereby  loses 
the  power  of  exercising  the  rights  connected  with  his  posi- 
tion."2 

On  the  other  hand,  it  is  not  considered  necessary,  as  a  rule, 
that  the  de  facto  government  should  by  a  referendum  or  other- 
wise be  authorized  to  treat  for  peace,  though  Bismarck  in  the 
Franco-German  War  required  that  the  existing  government  of 
the  National  Defence  should  be  formally  recognized  by  the 
French  National  Assembly  as  a  preliminary  to  treating  with  it 
for  peace.  The  Chilians  at  the  almost  general  cessation  of 
hostilities  with  Peru  had  much  diflSculty  in  finding  a  proper 

^  Oppenheim,  2d  ed.,  vol.  II,  p.  324. 
'  Oppenheim,  2d  ed.,  vol.  II,  p.  331. 


MILITARY  OCCUPATION  375 

government  with  which  to  treat  for  peace,  and  were  accused 
of  setting  up  one  for  the  purpose. 

Although  belHgerents  are  desirous  and  ready  to  bring  a  war 
to  a  conclusion,  it  may  be  that  time  is  wanted  before  a  treaty 
can  be  duly  drawn  up  and  signed.  Under  those  circumstances, 
in  place  of  a  general  armistice,  there  is  established  what  .is 
known  as  "preliminaries  of  peace,"  which  is  a  compact  in  the 
nature  of  a  treaty,  but  dealing  only  with  what  may  be  agreed 
upon  as  essential  matters.  This  compact  requires  a  ratifica- 
tion by  the  governments  concerned  though  not  necessarily 
requiring  legislative  action.  The  war  between  Austria,  France, 
and  Sardinia  was  ended  by  the  preliminaries  of  Villafranca; 
the  war  between  Austria  and  Prussia  by  the  preliminaries  of 
Nikolsburg,  and  the  Franco-German  War  by  the  preliminaries 
of  Versailles  on  February,  1871,  followed  by  the  definite  treaty 
of  peace  of  Frankfort  on  May  10,  1871.  By  the  interference  of 
neutral  states,  however,  the  preliminary  agreements  may  be 
altered  as  in  the  Russo-Turkish  War,  when  the  preliminaries 
of  San  Stefano,  in  1878,  through  the  Berlin  Congress,  were 
made  less  favorable  for  Russia  by  the  subsequent  treaty  of 
Berlin. 

The  treaty  of  peace  should  be  in  writing  and  drawn  up  with 
the  utmost  care.  The  fact  that  there  is  always  a  discontented 
party  should  require  precision  and  clearness  in  the  text  of  the 
treaty. 

As  Rayneval  says,  the  victor  should  speak  in  the  language 
of  moderation;  the  defeated  in  that  of  dignity;  if  the  latter  is 
humiliated  by  facts,  he  ought  not  to  be  by  words;  no  important 
matter  of  discussion  should  remain  uncertain,  no  word  ought 
to  furnish  any  doubt  as  to  interpretation.^ 

Treaties  of  peace  are,  as  a  rule,  binding  from  the  date  of 
signature,  at  which  time  hostilities  cease  if  no  armistice  is  in 
effect.     It  may  be,  however,  that  the  date  upon  which  it  goes 

1  J.  M.  Gerard  de  Rayneval,  " Institutiona  de  Droit  de  la  Guerre,"  2d 
ed.,  1903,  p.  285. 


376  WAR-RELATIONS  OF  BELLIGERENTS 

into  effect  may  be  named  in  the  body  of  the  treaty;  this  is  apt 
to  occur  when  hostiHties  extend  to  regions  beyond  immediate 
communication. 

172.  Effects  of  Treaties  of  Peace. — The  chief  effect  of  a 
treaty  of  peace  is,  of  course,  the  re-estabhshment  of  peace  con- 
ditions and  intercourse  between  the  beUigerents  and  their 
nationals  while  otherwise  all  acts  legitimate  in  war  alone  auto- 
matically cease  to  be  so  regarded.  Diplomatic  intercourse  is 
again  established  and  consular  officers  resume  their  functions. 

Unless  it  is  otherwise  stipulated,  the  principle  of  uti  possidetis 
comes  into  effect,  which  can  be  defined  as  the  general  principle 
that  things  acquired  in  war  remain  both  as  to  title  and  posses- 
sion as  they  stood  when  peace  began.  "Peace,"  says  Wheaton, 
"gives  a  final  and  perfect  title  to  capture  without  condemnation, 
and  as  it  forbids  all  force  it  destroys  all  hope  of  recovery  as 
much  as  if  the  captured  vessel  was  carried  infra  prcesidia  and 
judicially  condemned."^ 

Of  course,  exceptions  to  this  rule  may  be  named  in  the  treaty 
of  peace  which  would  govern  a  naval  or  military  commander, 
who  is  not  obliged,  however,  to  accept  any  information  as  to 
peace  which  is  not  duly  authenticated  by  his  own  govern- 
ment. 

In  the  treaty  of  Ghent,  at  the  close  of  the  War  of  1812  be- 
tween the  United  States  and  Great  Britain,  it  was  provided 
that  hostilities  should  cease  at  the  date  of  the  ratification  of 
the  treaty  and  that  prizes  taken  after  that  date  were  to  be 
restored  but  also  providing  a  time  allowance  for  the  news  of 
the  peace  to  reach  the  various  parts  of  the  world. 

An  American  cruiser  at  the  end  of  this  war  captured  a  Brit- 
ish vessel  before  the  period  fixed  for  the  cessation  of  hostili- 
ties and,  in  ignorance  of  the  fact,  it  was  recaptured  at  sea  by 
a  British  vessel  of  war  after  the  period  fixed  for  the  cessation 
of  hostilities,  but  also  without  knowledge  of  the  treaty  of 
peace.  It  was  judicially  held  under  these  circumstances  that 
1  Dana's  "Wheaton,"  pp.  719,  720. 


MILITARY  OCCUPATION  377 

the  American  capture  was  lawful  but  that  the  recapture  was 
not  legal. 

It  is  not  at  all  unusual  that  a  treaty  of  peace  brings  in  its 
train  a  number  of  other  conventions  for  the  purpose  of  per- 
forming the  obligations  prescribed  in  general  terms  in  the  treaty 
proper.  Occupied  territory  has  to  be  dealt  with,  fortifications 
evacuated,  war  indemnities  paid,  boundary  lines  redrawn, 
prisoners  exchanged,  etc.  It  is  stated  that  after  the  treaty  of 
peace  had  been  signed  concluding  the  Franco-German  War  of 
1870-1  more  than  a  hundred  separate  conventions  were  con- 
cluded for  the  purpose  of  carrying  out  the  details  of  this  treaty. 

"In  a  general  way,"  says  Hall,  "it  revives  all  private  rights 
and  restores  the  remedies  which  have  been  suspended  during 
the  war.  Contracts,  for  example,  are  revived  between  private 
persons  if  they  are  not  of  such  a  kind  as  to  be  necessarily  put 
an  end  to  by  war  and  if  their  fulfilment  has  not  been  rendered 
impossible  by  such  acts  of  a  belligerent  government  as  the  con- 
fiscation of  debts  due  by  subjects  to  those  of  its  enemy;  the 
courts  also  are  reopened  for  the  enforcement  of  claims  of 
every  kind."^ 

173.  Conquest  and  Cession. — "Conquest,"  says  Hall,  "con- 
sists in  the  appropriation  of  the  property  in,  and  of  the  sover- 
eignty over,  a  part  or  the  whole  of  the  territory  of  a  state  and, 
when  definitely  accomplished,  vests  the  whole  rights  of  property 
and  sovereignty  over  such  territory  in  the  conquering  state. "^ 

Conquest  is  distinguished  from  military  occupation  in  that 
it  is  the  completed  and  final  status  of  the  acquired  territory 
recognized  tacitly  by  inability  to  contest  by  the  original  owner. 
This  status  is  shown  by  declared  intention  and  ability  of  main- 
tenance and  should  be  made  known  by  a  decree  of  annexation. 

"Title  by  conquest,"  says  Lawrence,  "differs  from  title  by 

cession  in  that  the  transfer  is  not  effected  by  treaty  and  from 

title  by  prescription  in  that  there  is  a  definite  act  or  series  of 

acts  out  of  which  the  title  arises.     These  acts  are  successful 

»  HaU,  6th  ed.,  p.  557.  2  HaU,  6th  ed.,  p.  560. 


378  WAR-RELATIONS  OF  BELLIGERENTS 

military  operations;  but  if  a  province  conquered  in  a  war  is 
afterward  made  over  to  the  victorious  power  by  treaty,  it  is 
acquired  by  cession.  Title  by  conquest  arises  only  when  no 
formal  international  document  transfers  the  territory  to  its 
new  possessor."^ 

"When  territory  changes  hands  by  cession  or  conquest,  the 
fact  that  allegiance  is  now  based  upon  consent  is  usually  recog- 
nized by  the  insertion  of  a  clause  in  the  treaty  by  which  the 
conquest  is  completed  or  the  cession  accomplished,  permitting 
such  of  the  inhabitants  as  desire  to  retain  their  former  citizen- 
ship to  dispose  of  their  property  and  return  to  the  state  of  their 
original  allegiance.  Individuals  who  decline  to  take  advantage 
of  this  permission  and  elect  to  remain  in  the  ceded  territory 
are  presumed  to  consent  to  the  change  in  allegiance  which  is 
involved  in  the  conquest  or  cession.  From  the  nature  of  the 
case,  however,  no  formal  guarantee  of  the  allegiance  of  the 
population  of  territory  thus  transferred  is  either  given  or  ex- 
pected. It  is  proper  to  say,  also,  that  while  the  inhabitants 
of  conquered  or  ceded  territory  become  vested  with  the  rights 
of  citizenship  by  the  fact  of  conquest  or  cession,  in  so  far  as 
other  states  are  concerned,  their  actual  absorption  into  the 
body  politic  of  the  conquering  state  is  a  matter  which  is  regulated 
not  by  international  law  but  by  the  constitution  and  laws  of 
the  state  to  which  their  allegiance  has  been  transferred  by  con- 
quest or  cession."'^ 

In  the  cession  of  Alsace  and  Lorraine  it  was  provided  by  the 
treaty  of  Frankfort,  of  1871,  that  those  who  wished  to  retain 
their  French  nationality  must  emigrate,  but  they  were  allowed 
to  retain  the  ownership  of  their  real  estate  within  the  ceded 
territory.  It  may  be  considered  to  be  a  general  rule  that,  when- 
ever political  jurisdiction  is  transferred  over  certain  territory 
from  one  state  to  another,  the  existing  and  strictly  munic- 
ipal laws  continue  in  force  until  changed  by  the  new  govern- 

^  Lawrence's  "Principles,"  4th  ed.,  par.  77. 
» Davis,  "Int.  Law,"  3d  ed.,  p.  346. 


MILITARY  OCCUPATION  379 

ment.  This  may  be  done  gradually  or  at  once.  In  some  cases, 
like  that  of  Louisiana,  the  laws  based  upon  Roman  law  have 
been  allowed  to  continue  in  a  very  large  degree  until  the  pres- 
ent time.  Certainly  it  is  more  equitable  to  have  such  radical 
changes  in  legal  institutions  to  occur  gradually. 

TOPICS  AND  REFERENCES 

1.  The  Meaning  of  Military  Occupation — 

Higgins,  "The  Hague  Peace  Conferences,"  sec.  Ill,  245,  etc. 
Holland,  "Laws  of  War  on  Land,"  52.  G.  B.  Davis,  "Inter- 
national Law,"  3d  ed.,  327-33L 

2.  The  Authority  of  the  Military  Occupant — 

Oppenheim,  "International  Law,"  2d  ed.,  vol.  II,  210-225.  Moore's 
'Digest  of  International  Law,"  vol.  VII,  257-269.  Westlake, 
'International  Law,"  2d  ed.,  vol.  II,  95-lOL 


"] 


3.  Limitations  to  the  Military  Authority  of  the  Occupant — 

Higgins,  "Hague  Peace  Conferences,"  265-272.  Hall,  "Inter- 
national Law,"  6th  ed.,  464-480.  Hershey's  "Essentials,"  410- 
417. 

4.  Termination  of  War — 

Oppenheim,  "International  Law,"  2d  ed.,  vol.  II,  322-7.  Hall, 
"International  Law,"  6th  ed.,  553-571.  Moore's  "Digest  of 
International  Law,"  vol.  VII,  par.  1163. 

5.  Treaty  of  Peace — 

Oppenheim,  "International  Law,"  2d  ed.,  vol.  II,  327-332. 
Hershey's  "Essentials,"  101,  176,  183.  Hall,  "International 
Law,"  6th  ed.,  552-9. 

6.  Effects  of  a  Treaty  of  Peace — 

Stockton's  "Manual  for  Naval  Officers,"  208,  213.  Davis,  "Inter- 
national Law,"  3d  ed.,  343-5.  Westlake,  "International  Law," 
2d  ed.,  vol.  II,  57. 

7.  Conquest  and  Cession — 

Moore's  "Digest,"  vol.  VII,  par.  1156.  Oppenheim,  2d  ed.,  vol. 
II,  325.    Hall,  "International  Law,"  6th  ed.,  98,  118,  566. 


PART  V 

RELATIONS  BETWEEN  BELLIGERENTS 
AND  NEUTRALS 

CHAPTER  XXIII 

NEUTRALITY  AND  ITS  DEVELOPMENT.    RIGHTS  AND 
DUTIES  OF  NEUTRALS  IN  LAND  WARFARE 

174.  The  Creation  of  Neutral  States  by  Commencement  of 
War. — It  has  been  seen  in  the  previous  pages  of  this  book  that, 
in  general,  international  law,  so  far  as  it  is  concerned  with  the 
relations  of  states  and  peoples,  may  be  separated  into  two 
great  divisions,  the  first  dealing  with  the  time  of  peace  and  the 
second  with  a  period  of  war. 

The  period  of  war,  so  far  as  states  are  concerned,  is  in  its 
turn  subdivided  into  two  parts;  the  first  concerning  the  rela- 
tions between  the  opposing  belligerent  states,  and  the  second 
treating  of  the  relations  between  the  opposing  belligerents  and 
the  states  remaining  in  peace,  and  which  have  become  by  the 
existence  of  war  neutral  parties  to  the  conflict;  of  this  last 
subdivision  we  now  propose  to  treat. 

No  matter  how  much  war  is  to  be  regretted  and,  if  possible, 
avoided,  it  is  recognized  by  international  law  as  a  legal  method 
of  procedure  for  the  enforcement  of  rights  and  the  redress  of 
wrongs  and  also  for  the  settlement  of  disputes  in  a  great  con- 
flict of  wills  between  states. 

"The  existence  of  war,"  says  Westlake,  "as  between  the 
belHgerents  imposes  the  duties  of  neutrality  on  third  powers 
and  their  subjects  and  gives  them  what  are  called  the  rights 
of  neutrals,  but  which  are  in  truth  only  the  limitations  of  its 

380 


NEUTRALITY  AND  ITS  DEVELOPMENT  381 

duties,  for  no  new  right  accrues  to  a  neutral  as  such.  But  al- 
though the  duties  arise  from  the  facts,  it  would  be  unjust  to 
impose  them  without  notification  of  the  facts  or  something 
equivalent  to  them."^ 

This  is  provided  in  The  Hague  convention  of  1907  in  the 
Convention  \T,  relative  to  the  commencement  of  hostilities  in 
which  it  is  stated  in  Article  2  that  "the  state  of  war  should 
be  notified  to  the  neutral  powers  without  delay  and  shall  not 
take  effect  in  regard  to  them  until  after  the  receipt  of  a  noti- 
fication, which  may  even  be  made  by  telegraph.  Nevertheless, 
neutral  powers  cannot  plead  the  absence  of  notification  if  it 
be  established  beyond  doubt  that  they  were  in  fact  aware  of 
the  state  of  war."^ 

In  the  case  of  civil  war  which  commences  without  a  regular 
declaration  of  w^ar,  duties  of  neutrality  are  created  similar  to 
those  existing  in  war  between  states  for  all  of  the  powers  not 
engaged  in  the  hostilities.  A  recognition  of  the  state  of  block- 
ade duly  proclaimed  at  once  brings  into  play  neutral  duties 
and  restrictions  as  well  as  the  rights  of  belligerents. 

175.  The  Status  and  Principles  of  Neutrality. — The  status 
of  strict  neutrality  in  war  may  be  described  as  a  complete  ab- 
stinence on  the  part  of  the  neutral  states  from  any  participa- 
tion in  the  war,  coupled  with  absolute  impartiality  toward  the 
opposing  belligerent  states  in  all  other  matters. 

State  neutrality  which  becomes  incumbent  on  the  part  of 
those  states  not  engaged  in  the  war  is  not  only  a  right  but  a 
duty.  It  is  a  duty  performed  voluntarily,  except  in  the  cases 
of  the  neutrality  required  by  treaty  from  such  permanently 
neutralized  states  as  Switzerland,  Belgium,  and  the  Grand 
Duchy  of  Luxemburg. 

Professor  Holland,  a  leading  British  jurist,  considers  the 
obligations  of  a  neutral  state  as  being  of  three  classes,  involv- 
ing respectively  abstention,  prevention,  and  acquiescence. 

»  Westlake,  "Int.  Law,"  2d  od.,  vol.  II,  p.  30. 
•Higgins,  "Hague  Conferciicea,"  p.  199. 


382  BELLIGERENTS  AND  NEUTRALS 

"1.  Abstention  is  of  a  negative  character.  It  consists  of 
restrictions  upon  the  free  action  of  the  neutral  state,  by  which 
it  is,  for  instance,  bound  not  to  supply  armed  forces  to  a  bel- 
ligerent, not  to  grant  passage  to  such  forces,  and  not  to  sell 
him  ships  or  munitions  of  war,  even  when  the  sale  takes  place 
in  the  ordinary  course  of  getting  rid  of  superfluous  or  obsolete 
equipment. 

"2.  Prevention.  The  second  class  of  neutral  obligations  is 
of  much  wider  scope  than  the  first  and  gives  rise  to  a  greater 
number  of  debatable  questions.  It  is  positive  in  character, 
imposing  on  the  neutral  state  duties  of  interference  with  the 
action  of  belligerents  and  of  its  own  subjects. 

"3.  Acquiescence.  The  third  head  of  neutral  duty  is  of  a 
negative  character,  obliging  the  neutral  state  to  acquiesce  in 
acts  on  the  part  of  belligerents  which,  but  for  the  existence  of 
war,  would  be  unlawful  and  ground  for  redress."* 

What  are  called  the  general  rights  of  neutral  states,  on  the 
other  hand,  include  those  of  a  complete  inviolability  of  terri- 
tory, both  land  and  water,  from  the  warlike  operations  of  the 
belligerents.  This  inviolability  can  be  secured  by  them,  if  nec- 
essary, by  force  of  arms. 

Neutral  states  have  also  freedom  of  trade  on  land  and  sea 
with  all  states,  including  the  belligerents,  as  in  time  of  peace, 
except  so  far  as  the  carriage  of  contraband,  evasion  of  blockade, 
or  unneutral  service  to  the  belligerents  is  concerned.  In  case 
of  capture,  for  these  offences,  of  their  merchantmen  on  the 
high  seas  or  in  belligerent  territorial  waters  neutral  states  have 
the  right  to  require  a  fair  trial  before  condemnation  of  the 
goods  or  vessel. 

Neutral  states  have  also  the  right  to  afford  asylum  to  troops 
or  vessels  seeking  it,  provided  they  disarm  and  intern  them 
until  the  end  of  the  war.  They  have  also  the  right  to  allow 
entrance  of  belligerent  vessels  of  war  under  certain  limitations 
into  their  ports,  but  they  can  also,  if  they  choose,  exclude  them 
^  Holland,  "Transactions  of  the  British  Academy,"  vol.  II,  p.  58. 


NEUTRALITY  AND  ITS  DEVELOPIVIENT  383 

altogether.  These  rights  must  be  exercised  impartially,  mider 
the  same  circumstances  to  the  opposing  belligerents  alike. 

Belligerent  states  on  their  part  have  the  general  rights  to 
visit  and  search  all  neutral  merchantmen  and  privately  owned 
vessels  upon  the  high  seas  or  in  belligerent  waters.  If  found  to 
be  engaged  in  the  carriage  of  contraband,  evasion  of  blockade, 
or  unneutral  service,  they  have  the  right  to  capture  and  detain 
them  and  by  legal  process  condemn  them. 

In  a  general  sense,  belligerent  states  have  the  obligations  to 
respect  the  war  rights  of  neutrals,  especially  as  to  their  terri- 
tory and  trade. 

176.  The  Development  of  the  Law  of  Neutrality. — The 
first  development  of  neutrality  as  a  part  of  international  law 
may  be  said  to  have  begun  in  the  sixteenth  century  so  far  as 
states  are  concerned.  It  is  true  that  in  the  Consolato  del  Mare 
it  was  provided  that  neutral  goods  captured  in  vessels  of  the 
enemy  must  be  restored,  yet  that  was  not  a  code  of  state  law, 
and  even  that  code  provided  for  the  confiscation  of  the  goods 
of  the  enemy  on  board  of  neutral  vessels  in  time  of  war. 

In  the  seventeenth  century  Grotius  in  his  famous  treatise 
gives  but  an  imperfect  idea  of  neutrality.  "It  is,"  he  states, 
"the  duty  of  neutrals  to  do  nothing  which  may  strengthen 
those  who  are  prosecuting  an  unjust  cause  or  which  may  im- 
pede the  movements  of  him  who  is  carrying  on  a  just  war. 
.  .  .  But  if  the  cause  is  a  doubtful  one  they  must  manifest  an 
impartial  attitude  toward  both  sides,  in  permitting  them  to 
pass  through  the  country,  in  supplying  their  troops  with  pro- 
visions, and  in  not  relieving  the  besieged."^ 

The  practice  of  neutrality  in  this  century  was  as  imperfect 
as  the  theory.  In  time  of  peace  with  both  states  Henry  IV 
permitted  regiments  of  the  French  army  to  serve  with  the 
Netherlands;  an  expedition  of  Scotch  soldiers,  numbering  six 
thousand  men,  served  under  the  command  of  the  Marquis  of 
Hamilton  during  the  Thirty  Years'  War  under  Gustavus 
1  "Dc  Jure  Belli  ac  Pacis,"  vol.  Ill,  chap.  XVII. 


384  BELLIGERENTS  AND  NEUTRALS 

Adolphus  in  1631;  and  in  1656  a  treaty  was  concluded  between 
England  and  Sweden  by  which  it  was  "  lawful  for  either  of  the 
contracting  parties  to  raise  soldiers  and  seamen  by  beat  of 
drum  within  the  kingdoms,  countries,  and  cities  of  the  other 
and  to  hire  men-of-war  and  ships  of  burden."^ 

In  the  eighteenth  century  matters  had,  though  slowly,  pro- 
gressed toward  better  neutrality.  In  1759,  when  Admiral  Bos- 
cawen  chased  a  French  squadron  into  the  waters  of  Portugal 
and  therein  captured  two  vessels,  the  government  of  Portugal 
was  obliged  to  demand  reparation  in  order  to  avoid  trouble 
with  France.  As  the  vessels  were  not  required  to  be  surren- 
dered, France  made  this  a  ground  for  war  with  Portugal  in 
1762.  The  progress  referred  to  was  partly  due  to  the  text- 
writers  of  the  day,  such  as  Bynkershoek,  Vattel,  and  Wolff. 
Public  opinion  which  was  maturing  upon  the  subject  was, 
however,  almost  entirely  confined  to  the  duty  of  states  within 
their  own  jurisdiction  and  power  with  each  other  but  not  as 
to  their  subjects  in  relation  to  the  belligerent  states. 

The  practice  of  the  eighteenth  century,  hence,  was  still 
imperfect.  Both  Holland  and  Piedmont  furnished  troops  for 
the  war  of  the  Austrian  succession,  and  England  in  the  war  for 
the  American  independence  drew  large  bodies  of  mercenaries 
from  neutral  German  states  under  treaty  with  their  sovereigns. 
After  the  successful  issue  of  our  Revolutionary  War  and  the 
attainment  of  our  independence  we  at  once  began  our  most 
creditable  policy  of  strict  neutrality.  In  fact,  the  early  history 
of  the  progress  of  neutrality  was  largely  our  own.  In  1785  the 
United  States  made  a  treaty  with  Prussia  that  neither  one 
nor  the  other  of  the  two  states  would  let  for  hire,  or  lend,  or 
give  any  part  of  its  naval  or  military  forces  to  the  enemy  of 
the  other  to  help  it  or  to  enable  it  to  act  offensively  or  defen- 
sively against  the  belligerent  party  to  the  treaty. 

Shortly  after  this  came  the  French  Revolution,  followed  by 
the  war  between  France  and  the  European  powers,  and  during 
1  Hall,  "International  Law,"  6th  ed.,  p.  575. 


NEUTRALITY  AND  ITS  DEVELOPMENT  385 

which,  in  1793,  President  Washington  issued  a  proclamation 
of  neutrality  which  was  followed  by  a  second  and  more  strin- 
gent one  in  1794. 

These  proclamations  were  largely  in  consequence  of  the 
operations  of  the  new  French  minister,  M.  Genet,  who  upon 
landing  at  Charleston,  S.  C,  began  to  grant  commissions  to 
Americans  who  fitted  out  privateers  cruising  against  English 
merchantmen.  Jefferson,  then  secretary  of  state,  stated  to 
I\I.  Genet  that  it  was  "the  right  of  every  nation  to  prohibit 
acts  of  sovereignty  from  being  exercised  by  any  other  within 
its  limits  and  the  duty  of  a  neutral  nation  to  prohibit  such  as 
would  injure  one  of  the  warring  powers;  that  the  granting 
military  commissions  within  the  United  States  by  any  other 
authority  than  their  own  is  an  infringement  of  their  sovereignty 
and  particularly  so  when  granted  to  their  own  citizens  to  lead 
them  to  commit  acts  contrary  to  the  duties  they  owe  to  their 
country."^ 

The  government  began  at  once  active  movements  to  prevent 
the  further  violation  of  the  neutrality  of  the  United  States. 
Gideon  Henfield,  an  American  citizen  serving  on  board  a  French 
privateer,  was  arrested  to  be  tried  for  disturbing  the  peace  of 
the  United  States  and  for  violating  the  treaties  of  peace  be- 
tween the  United  States  and  the  countries  at  war  with  France. 
The  sale  of  prizes  taken  by  the  French  privateers  was  inter- 
fered with,  and  rigorous  instructions  were  issued  by  Hamilton, 
as  secretary  of  the  treasury,  to  the  collectors  of  customs  at  the 
principal  ports  of  the  United  States,  transmitting  rules  which 
had  been  approved  by  the  President,  prohibiting  the  fitting 
out  of  privateers  to  cruise  against  friendly  nations. 

In  July,  1793,  the  previously  mentioned  Gideon  Henfield 
being  indicted  for  enlisting  on  board  a  French  privateer,  the 
judges  ruled  the  act  to  be  a  crime,  but  popular  sentiment  ran 
so  high  in  favor  of  France  that  the  jury  promptly  acquitted 
him.  Governor  Shelby,  on  his  part,  in  Kentucky,  refused  to 
^  American  State  Papers,  vol.  I,  p.  67. 


386  BELLIGERENTS  AND  NEUTRALS 

prosecute  American  citizens  engaged  in  the  formation  of  mili- 
tary expeditions  against  New  Orleans,  then  in  possession  of 
Spain.  Finally,  Washington,  realizing  that  additional  legisla- 
tion was  necessary  to  fulfil  the  obligation  of  neutrality  and  to 
complete  the  measures  taken  by  his  administration,  reviewed 
his  policy  in  his  annual  address  to  Congress  in  December,  1793, 
and  called  upon  that  body  to  enact  the  necessary  legislation 
to  give  suflBcient  authority  to  the  executive  and  judicial  de- 
partments of  the  government. 

As  a  result,  the  desired  legislation  was  given  in  the  act  of 
June  5,  1794,  embodying  the  rules  issued  by  Hamilton  to  the 
collectors  of  customs  and  supplementing  them  by  the  recom- 
mendations contained  in  the  President's  message.  This  law 
was  continued  in  force  for  a  period  equal  to  its  original  dura- 
tion in  1797  and  was  made  a  permanent  law  on  April  24, 1800. 

In  regard  to  this  act  Doctor  Fenwick,  in  his  work  upon  the 
neutrality  laws  of  the  United  States,  says: 

"  The  scope  of  the  act  was  not  only  more  comprehensive  than 
any  of  the  previous  temporary  neutrality  edicts  issued  by  the 
nations  of  Europe  earlier  in  the  century,  but  it  went  consider- 
ably beyond  what  was  considered  the  duty  of  a  neutral  nation. 
It  was  the  first  attempt  ever  made  on  the  part  of  a  neutral 
nation  to  pronounce  definitely  that  certain  acts  would  be  con- 
sidered by  it  a  violation  of  neutrality  and  to  incorporate  those 
acts  into  its  criminal  code  and  enforce  their  observance  in  favor 
of  any  friendly  prince  or  state  without  distinction.  No  higher 
tribute  to  the  statesmanship  of  Washington  and  his  advisers 
could  be  paid  than  that  rendered  by  Mr.  Canning  in  1823,  in 
a  speech  before  the  House  of  Commons  against  the  repeal  of 
the  British  foreign  enlistment  act  of  1819.  'If  I  wished,'  he 
said,  'for  a  guide  in  a  system  of  neutrality,  I  should  take  that 
laid  down  by  America  in  the  days  of  the  presidency  of  Wash- 
ington and  the  secretaryship  of  Jefferson.'"^ 

In  continuing  the  development  of  the  law  of  neutrality  by 
1  "Neutrality  Laws  of  the  United  States,"  Fenwick,  pp.  27,  28. 


NEUTRALITY  AND  ITS  DE\^LOPMENT  387 

the  United  States  we  come  to  the  period  of  the  wars  resulting 
from  the  efforts  of  the  Spanish-American  colonies  for  the  at- 
tainment of  their  independence.  This  opened  a  new  period 
in  the  neutrahty  history  of  the  United  States,  The  sympathies 
of  the  United  States  and  its  citizens  naturally  leaned  to  the 
side  of  the  Spanish-American  colonists.  The  government  of 
the  United  States,  consistent  with  its  previous  policy,  main- 
tained its  policy  and  abstained  as  a  government  from  any  aid 
to  these  American  revolting  colonies,  but  difficulty  was  found 
in  preventing  individuals  from  taking  up  their  cause  and  com- 
ing to  their  assistance  by  various  military  expeditions.  Presi- 
dent Jefferson  in  1806  and  President  Madison  in  1815  issued 
proclamations  of  neutrality  warning  all  persons  against  any 
infraction  of  the  neutrality  laws  of  the  United  States.  In  1816 
President  Madison  recommended  to  Congress  the  expediency 
of  further  legislative  action  against  the  formation  and  sailing 
of  military  expeditions  against  countries  with  whom  we  were 
at  peace. 

The  result  was  that  after  considerable  opposition  in  Congress 
the  act  of  March  3,  1817,  was  passed,  principally  covering  the 
ground  of  insurgent  colonies  in  addition  to  foreign  states.  This 
act  with  some  amendments  was  later  codified  into  a  single  act 
which  is  known  as  the  act  of  April  20, 1818,  and  now  represents 
the  present  law  of  the  United  States  upon  the  matter  of  neu- 
trality and  is  contained  in  the  Revised  Statutes  of  the  United 
States,  with  a  few  verbal  alterations  and  rearrangement,  in 
Sections  5281  to  5291.  This  act  was  followed  by  and  may  be 
called  the  basis  of  the  British  foreign  enlistment  act  of  1819. 
Both  acts  make  it  the  duty  of  neutrals  to  prevent  the  fitting 
out  and  sailing  of  hostile  cruisers  or  expeditions  from  their 
waters  and  also  the  enlistment  of  their  citizens  within  their 
territory  for  foreign  service  in  case  of  war. 

Various  matters  have  connected  the  United  States  with  at- 
tempts of  violation  both  of  the  law  of  neutrality  and  of  inter- 
national law  and  the  municipal  laws  of  the  United  States  which 


388  BELLIGERENTS  AND  NEUTRALS 

by  contradistinction  are  known  as  neutrality  laws.  These 
matters  relate  to  the  various  troubles  on  the  Canadian  and 
Mexican  borders,  to  the  Civil  War  of  1861-5,  to  the  various 
Cuban  insurrections,  and  to  the  Spanish-American  War  of  1898. 

This  sketch  of  the  development  of  neutrality  in  the  latter 
part  of  the  eighteenth  century  and  in  the  earlier  part  of  the 
nineteenth  century  has  been  largely  devoted  to  its  develop- 
ment in  the  United  States  because  the  larger  development  in 
these  times  occurred  in  connection  with  our  country  and  con- 
tinent. Its  later  development,  where  not  treated  in  the  his- 
torical sketch  of  the  development  of  international  law,  will  be 
treated  under  the  separate  subjects  involved.  The  wars  in 
Europe  since  our  Civil  War  that  involved  neutrality  matters 
were  principally  the  Napoleonic  Wars,  the  Crimean  War  with 
the  declaration  of  Paris  at  its  end,  the  Franco-German  War, 
the  Chino-Japanese  War,  the  Boer  War,  the  Russo-Japanese 
War,  and  the  recent  Italo-Turkish  War. 

It  may  be  well,  however,  to  state  here  the  last  legislative 
order  of  the  United  States.  The  shipment  of  arms  across  the 
Mexican  border  has  been  a  matter  of  constant  and  recent  oc- 
currence, and  the  complications  arising  therefrom  exist  to  the 
time  of  the  present  writing.  From  this  question  arose  the 
joint  resolution  of  Congress  of  March  14,  1912.  It  provides 
that,  "  whenever  the  President  shall  find  that  in  any  American 
country  conditions  of  domestic  violence  exist  which  are  pro- 
moted by  the  use  of  arms  or  munitions  of  war  procured  from 
the  United  States  and  shall  make  proclamation  thereof,  it 
shall  be  unlawful  to  export,  except  under  such  limitations  and 
exceptions  as  the  President  shall  describe,  any  arms  or  muni- 
tions of  war  from  any  place  in  the  United  States  to  such  coun- 
try until  otherwise  ordered  by  the  President  or  by  Congress." 

This  joint  resolution,  the  body  of  which  has  just  been  given, 
"empowers  the  President,"  says  Doctor  Fenwick,  "to  recognize 
the  existence  of  conditions  under  which  the  act  makes  it  un- 
lawful to  export  any  arms  or  munitions  of  war  to  the  country 


NEUTRALITY  AND  ITS  DEVELOPMENT  389 

designated.  It  is  a  distinct  advance  over  the  joint  resolution 
of  1898  (forbidding  the  export  of  coal  in  war  time)  not  only  in 
that  it  was  framed  to  meet  the  neutral  obligations  of  the 
United  States  but  because  it  imposes  a  specific  penalty  upon 
offenders;  and  it  thus  takes  its  place  as  a  permanent  amend- 
ment to  the  neutrality  act  of  1818."^ 

In  Great  Britain  the  great  advance  of  late  in  neutrality  laws 
was  the  passage  of  what  is  known  as  "  The  Foreign  Enlistment 
Act  of  1870."  This  is  a  strengthening  of  the  provisions  of  the 
previous  foreign  enlistment  acts  and  is  in  advance  of  our  neu- 
trality law  of  1818.  It  was  the  result  of  the  experience  of 
Great  Britain  during  our  Civil  War  and  probably  represents 
the  most  advanced  law  upon  the  outfit  and  sailing  of  cruisers 
and  military  expeditions  in  violation  of  neutral  obligations  on 
the  part  of  any  one  nation.  In  the  meantime,  through  The 
Hague  convention  and  the  declaration  of  London  as  well  as 
the  Geneva  conventions  for  the  sick  and  wounded,  the  interna- 
tional obligations  of  belligerent  powers  and  the  rights  and 
duties  of  neutral  powers  in  time  of  war  have  been  to  a  great 
extent  formulated  by  general  treaty  into  conventional  law,  with 
corresponding  advantages  and  diminution  of  controversy  and 
complication.  An  explanation  and  discussion  of  these  matters 
will  be  found  in  the  pages  that  follow. 

177.  Neutral  Rights  and  Duties  in  Land  Warfare. — ^Many 
of  the  questions  coming  under  this  head  have  been  treated  in 
Convention  No.  V  of  the  second  Hague  conference,  which  is 
entirely  devoted  to  this  heading.  In  addition,  some  subjects 
also  pertinent  to  this  grouping  will  be  found  in  Convention 
No.  rV  on  the  laws  of  war  on  land  of  the  same  conference,  as 
well  as  in  the  Geneva  convention  of  1906. 

It  was  not  intended  by  The  Hague  conference  of  1907,  in 
devoting  their  time  to  the  formulation  of  a  convention  respect- 
ing "the  rights  and  duties  of  neutral  powers  and  persons  in 
war  on  land,"  to  settle  all  disputed  points  in  the  law  of  neu- 
1  Fenwick,  "  Neutrality  Laws  of  the  United  States,"  p.  58. 


390  BELLIGERENTS  AND  NEUTRALS 

trality  but,  as  Higgins  says,  "to  make  a  beginning  in  codifica- 
tion by  converting  into  a  written  law  such  of  the  existing  usages 
as  regarded  neutral  powers  and  persons,  as  were  of  general  ac- 
ceptance." ^  This  convention,  which  was  ratified  by  the  United 
States  Senate  on  March  10,  1908,  and  is  consequently  binding 
upon  the  United  States,  may  be  said  to  afford  not  only  a  good 
basis  for  future  action  upon  the  subject  which  it  treats  but  also 
to  present  well-accepted  principles  of  international  law. 

The  first  article  of  the  convention  reads  that: 

"  1.  The  territory  of  neutral  power  is  inviolable." 

Concerning  this  fundamental  principle  of  neutrality.  Professor 
Holland  makes  the  comment  that  "the  territory  of  a  neutral 
state,  so  long  as  the  state  fulfils  its  duties  as  a  neutral,  must 
not  be  entered  by  troops  of  either  belligerent,  except  for  the 
purpose  of  asking  to  be  interned  therein."^ 

The  second  article  reads: 

"2.  Belligerents  are  forbidden  to  move  across  the  territory 
of  a  neutral  power  troops  or  convoys  either  of  munitions  of 
war  or  of  supplies." 

This  article  is  naturally  a  direct  consequence  of  the  first 
article. 

The  third  article  reads: 

"3.  Belligerents  are  also  forbidden: 

"  (a)  To  install  on  the  territory  of  a  neutral  power  a  radio- 
telegraphic  station  or  any  apparatus  intended  to  serve  as  a 
means  of  communication  with  belligerent  forces  on  land  or  at 
sea. 

"  (&)  To  make  use  of  any  installation  of  that  character,  es- 
tablished by  them  before  the  war  on  the  territory  of  a  neutral 
power  and  not  previously  open  for  forwarding  public  communi- 
cations, for  a  purpose  exclusively  military." 

The  first  clause  of  this  article  would,  of  course,  prohibit  action 
like  that  taken  by  Russia  during  the  Russo-Japanese  War  in 

*  Higgins,  "Hague  Conferences,"  p.  290. 
» Holland,  "Laws  of  War  on  Land,"  p.  62. 


NEUTRALITY  AND  ITS  DEVELOPMENT  391 

the  establishment  of  a  wireless-telegraph  station  at  Chifu,  on 
Chinese  territory,  by  which  communication,  as  stated  in  a  pre- 
vious chapter,  was  kept  up  with  Port  Arthur  during  its  siege. 

Article  4  reads  that: 

"4.  Corps  of  combatants  cannot  be  formed  nor  recruiting 
offices  opened  on  the  territory  of  a  neutral  power  in  the  in- 
terest of  the  belligerents." 

In  the  case  of  the  United  States  v.  Kuzinski  it  was  ruled  that 
"  to  constitute  the  offence  of  enlisting  here,  it  requires  the  con- 
sent of  the  party  enlisting;  and  so,  also,  the  hiring  or  retaining 
a  person  to  go  abroad  with  intent  to  be  enlisted  requires  assent 
and  intent  on  the  part  of  the  person  hired  or  retained."^ 

Article  5  reads  that: 

"5.  A  neutral  power  ought  not  to  allow  in  its  territory  any 
of  the  acts  referred  to  in  Articles  2  to  4." 

It  is  not  bound  to  punish  acts  in  violation  of  neutrality  un- 
less such  acts  have  been  committed  on  its  own  territory. 

A  neutral  state  will  not  be  expected  to  discharge  duties  be- 
yond its  power.  In  1899  Luxemburg  declared  her  inability  to 
to  perform  the  duties  required  like  the  above  when  such  matters 
were  before  the  first  Hague  conference. 

Article  6  of  the  convention  reads: 

"6.  A  neutral  power  does  not  incur  responsibility  by  the 
fact  that  persons  cross  the  frontier  singly  in  order  to  place 
themselves  at  the  service  of  one  of  the  belligerents." 

Article  7  reads: 

"7.  A  neutral  power  is  not  bound  to  prevent  the  exporta- 
tion or  the  passage,  in  the  interest  of  one  or  other  of  the  bellig- 
erents, of  arms,  munitions,  or,  generally,  of  everything  which 
could  be  useful  for  an  army  or  fleet." 

This  is  in  accordance  with  the  traditional  policy  of  the 
United  States.  The  joint  resolution  of  Congress  of  1912  apply- 
ing to  cases  of  domestic  violence,  not  amounting  to  recognized 
war,  was  due  to  the  constant  insurrections  in  Mexico  which 

>  Federal  Cases,  no.  15,  508. 


392  BELLIGERENTS  AND  NEUTRALS 

made  the  frontier  territory  of  the  United  States  a  base  of  essen- 
tial supplies  to  insurgent  forces. 

Article  8  states  that: 

"8.  A  neutral  power  is  not  bound  to  forbid  or  restrict  the 
employment  on  behalf  of  belligerents  of  telegraph  or  telephone 
cables  or  of  wireless-telegraphy  apparatus  whether  belonging  to 
it,  or  to  companies,  or  to  private  individuals." 

Article  9  says  that: 

"9.  Every  restrictive  or  prohibitive  measure  taken  by  a 
neutral  power  in  regard  to  the  matters  referred  to  in  Articles 
7  and  8  must  be  applied  impartially  by  it  to  the  belligerents. 

"The  neutral  power  shall  see  to  the  same  obligation  being 
observed  by  companies  or  private  owners  of  telegraph  or  tele- 
phone cables  or  wireless-telegraphy  apparatus." 

Article  10  reads  that: 

"10.  The  fact  of  a  neutral  power  repelling,  even  by  force, 
attacks  on  its  neutrality  cannot  be  considered  as  a  hostile  act." 

The  second  chapter  of  this  convention  concerns  the  intern- 
ment of  belligerents  and  the  care  of  the  wounded  in  neutral 
territory. 

Article  11  reads  that: 

"11.  A  neutral  power  which  receives  in  its  territory  troops 
belonging  to  the  belligerent  armies  shall  intern  them,  as  far  as 
possible,  at  a  distance  from  the  theatre  of  war. 

"It  can  keep  them  in  camps  and  even  confine  them  in  for- 
tresses or  places  assigned  for  this  purpose. 

"It  shall  decide  whether  officers  may  be  left  at  liberty  on 
giving  their  parole  not  to  leave  the  neutral  territory  without 
permission." 

The  neutral  power,  of  course,  has  the  right  to  establish  the 
camps  of  internment  even  if  they  move  them  to  more  or  less  dis- 
tant territory  of  the  neutral  from  that  in  which  they  sought 
refuge.  Professor  Holland  claims  that  if  they  enter  neutral 
territory  by  undoubted  error  their  immediate  departure  should 
be  permitted.    The  most  striking  example  of  internment  in 


NEUTRALITY  AND  ITS  DEVELOPMENT  393 

modern  wars  was  the  internment  of  a  French  force,  consisting 
of  over  eighty  thousand  men,  in  the  Franco-German  War,  who 
entered  Swiss  territory  and  were  interned  for  the  rest  of  the 
war,  the  French  Government  paying  the  expense  incurred  at 
its  termination.  A  Federal  force  of  Mexicans  was  interned  by 
the  United  States  in  Texas,  in  1914. 

Article  12  goes  on  to  say  upon  this  subject  that: 

"12.  In  the  absence  of  a  special  convention,  the  neutral 
power  shall  supply  the  interned  with  the  food,  clothing,  and 
relief  which  the  dictates  of  humanity  prescribe. 

"At  the  conclusion  of  peace,  the  expenses  caused  by  intern- 
ment shall  be  made  good." 

Article  13  states  that: 

"13.  A  neutral  power  which  receives  prisoners  of  war  who 
have  escaped  shall  leave  them  at  liberty.  If  it  allows  them  to 
remain  in  its  territory  it  may  assign  them  a  place  of  residence. 

"The  same  rule  applies  to  prisoners  of  war  brought  by 
troops  taking  refuge  in  the  territory  of  a  neutral  power." 

Articles  14  and  15  read  that: 

"14.  A  neutral  power  may  authorize  the  passage  over  its 
territory  of  wounded  or  sick  belonging  to  the  belligerent  armies 
on  condition  that  the  trains  bringing  them  shall  carry  neither 
personal  nor  material  of  war.  In  such  a  case  the  neutral  power 
is  bound  to  adopt  such  measures  of  safety  and  control  as  may 
be  necessary  for  the  purpose. 

"15.  Wounded  and  sick  brought  under  these  conditions  into 
neutral  territory  by  one  of  the  belligerents  and  belonging  to 
the  adverse  party  must  be  guarded  by  the  neutral  power,  so 
as  to  insure  their  not  taking  part  again  in  the  operations  of  war. 
The  same  duty  shall  devolve  on  the  neutral  power  with  regard 
to  wounded  or  sick  of  the  other  army  who  may  be  committed 
to  its  care." 

It  will  be  noticed  that  the  passage  of  the  sick  ana  wounded 
mentioned  in  Articles  14  and  15  is  entirely  optional  with  the 
neutral  government.    This  privilege,  if  given,  must,  of  course, 


394  BELLIGERENTS  AND  NEUTRALS 

be  given  impartially  to  all  belligerent  states  and,  properly, 
should  not  be  given  to  one  belligerent  without  the  consent  of 
the  other. 

Its  possible  effect  may  be  seen  from  circumstances  that  oc- 
curred during  the  Franco-German  War  of  1870.  After  the 
battle  of  Sedan,  the  German  army  was  embarrassed  by  masses 
of  wounded  whom  it  was  difficult  to  move  into  Germany  by 
the  ordinary  open  routes,  while,  at  the  same  time,  their  support 
affected  the  commissariat  in  supplying  the  active  forces.  The 
German  Government  hence  applied  to  Belgium  for  leave  to 
transport  the  wounded  by  railway  across  Belgian  territory  to 
Germany.  As  a  result  of  the  strong  protest  of  France,  Bel- 
gium after  consultation  with  England,  refused  the  application. 
If  Belgium  had  consented,  the  Germans  could  have  increased 
their  transport  service  very  materially  by  devoting  their  rail- 
way service  entirely  to  warlike  purposes.^ 

Article  15  of  this  convention  closes  the  chapter  by  stating 
that  "the  Geneva  convention  applies  to  the  sick  and  wounded 
interned  in  neutral  territory." 

Article  16  of  the  next  chapter  states  that: 

"  The  nationals  of  a  state  which  is  not  taking  part  in  the  war 
are  considered  to  be  neutrals." 

Neutral  persons  residing  in  the  territory  of  a  belligerent  are 
liable  to  suffer,  with  the  other  inhabitants  of  the  country,  the 
vicissitudes  of  war.  They  are  liable  to  be  removed  from  their 
homes  or  even  from  the  country,  either  for  military  reasons  or 
on  suspicion  of  affiliation  with  the  invading  force  of  an  enemy 
or  general  misconduct  during  the  operations  of  war. 

This  article  with  the  following  Articles  17  and  18  were  not 
accepted  by  Great  Britain  and  were  duly  reserved  upon  the 
signing  of  the  convention  by  that  power.'^ 

Articles  17  and  18  read  that  "a  neutral  cannot  claim  the 
benefit  of  his  neutrality — 

1  Hall,  6th  ed.,  pp.  595,  596. 

'Higgins,  "Hague  Conferences,"  pp.  293,  294. 


NEUTRALITY  AND  ITS  DEVELOPMENT  395 


*t , 


(a)  If  he  commits  hostile  acts  against  a  belligerent; 

"  (6)  If  he  commits  acts  in  favor  of  a  belligerent,  particularly 
if  he  voluntarily  enlists  in  the  ranks  of  the  armed  force  of  one 
of  the  parties." 

In  such  a  case  the  neutral  shall  not  be  more  severely  treated 
by  the  belligerent  as  against  whom  he  has  abandoned  his  neu- 
trality than  a  national  of  the  other  belligerent  state  could  be 
for  the  same  act. 

"  18.  The  following  acts  shall  not  be  considered  as  committed 
in  favor  of  one  of  the  belligerents  within  the  meaning  of  Article 
17,  letter  (6). 

"  (a)  The  furnishing  of  supplies  or  the  making  of  loans  to  one 
of  the  belligerents,  provided  that  the  person  so  furnishing  or 
lending  neither  lives  in  the  territory  of  the  other  party  nor  in 
territory  in  the  occupation  of  that  party  and  that  the  sup- 
plies do  not  come  from  these  territories. 

"(6)  The  rendering  of  services  in  matters  of  policy  or  civil 
administration." 

The  two  following  wishes  {voeux)  were  embodied  in  the  final 
act  of  The  Hague  conference  of  1907  and  are  enumerated  there 
as  (2)  and  (3). 

They  read  as  follows: 

"  (2)  The  conference  expresses  the  wish  that,  in  case  of  war, 
the  responsible  authorities,  civil  as  well  as  military,  should 
make  it  their  special  duty  to  insure  and  safeguard  the  main- 
tenance of  pacific  relations,  more  especially  of  the  commercial 
and  industrial  relations  between  the  inhabitants  of  the  bellig- 
erent states  and  neutral  countries." 

"(3)  The  conference  expresses  the  wish  that  the  powers 
should  regulate  by  special  treaties,  the  position,  as  regards 
military  charges,  of  foreigners  residing  within  their  territories." 

Of  these  vcbux  Westlake  says:  "The  second  of  the  above 
wishes  is  a  very  proper  one  and  will  be  understood  when  it  is 
remembered  that  several  Spanish-American  states,  led  by  the 
great  immigration  into  them  to  claim  the  children  of  immi- 


396  BELLIGERENTS  AND  NEUTRALS 

grants  as  subjects  by  reason  of  their  birth  on  the  soil,  have 
been  engulfed  in  controversies  with  European  powers  who 
have  considered  that  the  principle  of  nationality  by  parentage 
ought  to  exempt  such  children  from  military  service."^ 

The  single  Article  19  of  Chapter  IV  of  the  Convention  V 
under  discussion  treats  of  railway  material,  allowing  as  it  does 
the  free  transfer  of  railway  material  except  in  cases  of  necessity. 

178.  Proclamations  and  Declarations  of  Neutrality. — While 
it  is  not  a  duty  on  the  part  of  a  neutral  state  to  issue  any  proc- 
lamation or  declaration  of  neutrality  after  the  notification  of 
the  commencement  of  war,  it  has  become  customary  to  do  so, 
especially  when  commercial  interests  are  involved  or  the  prox- 
imity of  the  hostile  operations  makes  it  advisable. 

The  practice  of  issuing  such  declarations  or  proclamations 
has  several  advantages:  it  calls  the  attention  of  the  nationals 
of  the  state  to  the  neutrality  or  corresponding  municipal  laws, 
to  the  obligations  and  penalties  of  citizens  arising  from  the 
existence  of  a  state  of  war;  it  is  useful  as  a  supplement  to  the 
neutrality  laws  in  publishing  the  policy  of  the  government 
toward  the  belligerents  and  in  a  maritime  war  giving  the  rules 
to  be  enforced  as  to  the  entry  and  use  of  its  waters  and  ports 
by  belligerent  fleets  and  vessels.     See  Appendix  V. 

Proclamations  of  this  sort  have  been  issued  by  the  Presidents 
of  the  United  States  from  the  earliest  days  in  wars  in  which 
the  country  and  its  citizens  were  likely  to  come  in  contact. 
So  far  as  the  British  Empire  is  concerned,  it  is  not  unusual  for 
the  governors  of  colonies  likely  to  be  involved  to  issue  separate 
proclamations  with  especial  reference  to  use  of  their  ports  by 
belligerent  vessels  of  war. 

In  a  civil  war  it  is  not  unusual  to  combine  with  the  procla- 
mation of  neutrality  the  recognition  of  a  state  of  belligerency 
in  the  war;  in  fact,  without  such  recognition  there  can  be  hardly 
an  existence  of  a  state  of  neutrality.  Of  course,  there  is  no 
state  of  neutrality  required  or  existing  in  international  law  be- 
» Westlake,  2d  ed.,  vol.  II,  p.  135. 


NEUTRALITY  AND  ITS  DEVELOPMENT  397 

tween  a  state  and  its  insurgents  when  unrecognized.  This, 
as  we  have  seen  can,  however,  be  made  a  matter  of  neutrality 
laws  or  acts  as  municipal  statutes. 

TOPICS  AND  REFERENCES 

L  The  Creation  of  Neutral  States  by  Commencement  of  War — 

Westlake,  2d  ed.,  vol.  I,  52-54;  vol.  II,  20-31.  Higgins,  "Hague 
Peace  Conferences,"  202-5.  Oppenheim,  "International  Law," 
2d  ed.,  vol.  II,  373-7. 

2.  The  Status  and  Principles  of  Neutrality — 

Westlake,  "International  Law,"  2d  ed.,  vol.  II,  190-8.  Hall, 
"International  Law,"  6th  ed.,  chap.  Ill,  588,  etc.  Moore's 
"Digest  of  International  Law,"  vol.  VII,  860-87L 

3.  The  Development  of  the  Law  of  Neutrality — 

G.  B.  Davis,  "International  Law,"  3d  ed.,  377-394.  Westlake, 
"International  Law,"  2d  ed.,  vol.  II,  198-207.  Woolsey,  "In- 
ternational Law,"  6th  ed.,  267-296. 

4.  Neutral  Rights  and  Duties  in  Land  Warfare — 

Higgins,  "Hague  Peace  Conferences,"  281-294.  Oppenheim,  2d  ed., 
386-393,  397,  398,  409-416,  426-432.  Holland,  "Laws  of  War 
on  Land,"  62-68. 

5.  Proclamations  and  Declarations  of  Neutrality — 

Moore's  "Digest  of  International  Law,"  vol.  VII,  1002-10.  Fen- 
wick,  "Neutrality  Laws  of  the  United  States,"  1913,  5,  17,  25, 
33,  42,  44-46,  53,  55-59,  145,  etc.  Oppenheim,  2d  ed.,  vol.  II, 
374.    Appendix  V. 


■  i    -(♦•      — 


CHAPTER  XXIV 

RIGHTS  AND  OBLIGATIONS  OF  NEUTRALS  AND 
BELLIGERENTS  IN  MARITIME  WARFARE 

179.  The  Inviolability  of  Neutral  Territory  and  Waters. — 
The  first  article  of  Convention  XIII  of  The  Hague  conference 
respecting  the  rights  and  duties  of  neutral  powers  in  maritime 
war  treats  of  the  inviolability  of  neutral  territory  and  waters 
in  maritime  war.  It  is  in  a  sense  a  repetition  of  Article  1  of 
Convention  V,  relating  to  land  warfare  but  emphasizing  the 
water  area  of  that  territory.  The  articles  that  follow  detail 
some  of  the  possible  violations.  The  first  article  reads  as  fol- 
lows: 

"Belligerents  are  bound  to  respect  the  sovereign  rights  of 
neutral  powers  and  to  abstain,  in  neutral  territory  or  neutral 
waters,  from  any  act  which  would,  if  knowingly  permitted  by 
any  power,  constitute  a  violation  of  neutrality." 

This  is  a  sound  general  principle  based  upon  the  right  of 
sovereignty,  which  is  a  fundamental  right  of  a  sovereign  state 
and  "includes  the  complete  inviolability  of  its  territory  from 
belligerent  operations."  "If  a  violation  of  neutrality,"  says 
Higgins,  "occurs,  it  is  a  neutral's  duty  to  take  steps  to  obtain 
redress,  especially  where  the  other  belligerent  is  injuriously 
affected;  but  this  is  not  definitely  stated  in  the  convention."^ 

Article  2  goes  on  to  say: 

"Any  act  of  hostility,  including  therein  capture  and  the 
exercise  of  the  right  of  search,  committed  by  belligerent  war- 
ships in  the  territorial  waters  of  a  neutral  power  constitutes  a 
violation  of  neutrality  and  is  strictly  forbidden." 

*  Higgins,  "Hague  Conferences,"  p.  461. 
398 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        399 

The  application  of  the  general  principle  in  the  article  Just 
given  follows  logically  and  is  recognized  in  theory  and  gener- 
ally in  practice,  though  there  have  been  violations  in  practice 
in  recent  wars. 

In  the  War  of  1812  neutral  territory  was  violated  by  the 
capture  of  the  Essex  and  the  privateer  General  Armstrong  by 
a  British  naval  force.  In  our  Civil  War  neutral  territory  was 
violated  by  the  capture  of  the  Florida  in  Bahia,  a  Brazilian 
port,  and  of  the  Chesapeake  in  a  port  in  Nova  Scotia,  by  vessels 
of  the  United  States,  while  as  late  as  the  Russo-Japanese 
War  the  capture  of  the  partly  dismantled  destroyer  Ryeshitelni, 
in  the  Chinese  port  of  Chifu  by  Japanese  destroyers  is  one  of 
the  most  recent  examples  of  violation  of  neutral  territory.^ 

It  is  held  by  some  writers.  Hall  among  the  number,  that  in 
case  of  hostilities  in  neutral  waters,  the  neutral  is  freed  from  re- 
sponsibility when  the  vessel  attacked  defends  itself  instead  of 
relying  entirely  upon  the  protection  of  the  neutral  power.  A 
decision  to  that  effect  was  given  by  Louis  Napoleon,  then  Presi- 
dent of  the  French  Republic,  in  1852,  in  the  case  of  the  General 
Armstrong,  attacked  by  a  British  fleet  in  the  harbor  of  Fayal 
in  1814.  This  view  and  award  cannot  be  considered  as  an 
accepted  one  at  the  present  time.  The  circumstances  of  the 
case,  with  an  attack  impending  for  some  little  time  and  with 
the  privateer  practically  under  the  guns  of  a  battery  of  the 
neutral,  justifies  the  claim  made  by  the  United  States  for  repa- 
ration from  the  neutral. 

In  cases  of  hostilities  in  neutral  waters  the  best  ruling  seems 
to  the  writer  to  be  that,  if  a  belligerent  vessel  is  attacked  in 
neutral  waters  and  it  has  reason  to  believe  that  sufficient  pro- 
tection will  be  seasonably  afforded  by  the  neutral,  it  should  not 
engage  in  hostilities;  but  that  otherwise  it  has  a  right  to  defend 
itself. 

If,  on  the  contrary,  a  vessel  captured  in  neutral  territory  was 

>  See  The  Anna  (5  Rob.  375);  The  Anne  (3  Wheaton,  435);  The  Eliza 
Ann  (1  Dod,  244);  and  The  Florida  (101  U.  S.  37). 


400  BELLIGERENTS  AND  NEUTRALS 

the  one  to  commence  the  attack  she  forfeits  neutral  interven- 
tion upon  her  behalf  for  restoration.^ 

Article  3  of  this  convention  treats  further  upon  this  subject 
and  says: 

"When  a  ship  has  been  captured  in  the  territorial  waters  of 
a  neutral  power,  such  power  must,  if  the  prize  is  still  within 
its  jurisdiction,  employ  the  means  at  its  disposal  to  release  the 
prize-crew. 

"If  the  prize  is  not  within  the  jurisdiction  of  the  neutral 
power,  the  captor  government  on  the  demand  of  that  power 
must  liberate  the  prize  with  its  officers  and  crew." 

This  convention  was  signed  by  the  United  States  and  rati- 
fied by  action  of  the  Senate,  April  17,  1908,  with  the  under- 
standing that  the  last  clause  of  Article  3 — which  is  the  previous 
paragraph — implies  the  duty  of  a  neutral  power  to  make  the 
demand  therein  mentioned  for  the  return  of  a  ship  captured 
within  the  neutral  jurisdiction  and  no  longer  within  that 
jurisdiction. 

In  Article  3  of  Convention  XII  of  the  second  Hague  con- 
ference, which  has  been  ratified  by  the  United  States  with  an 
additional  protocol,  provides  that  judgments  can  be  brought 
before  the  international  prize-court  in  case  of  an  enemy  ship 
captured  in  the  territorial  waters  of  a  neutral  power,  when 
that  power  has  not  made  the  capture  the  subject  of  a  dip- 
lomatic claim. 

The  decision  of  the  Supreme  Court  of  the  United  States  is 
thus  overruled  by  these  conventions  as  treaty  law  so  far  as 
the  signatories  are  concerned,  when  it  stated  in  the  case  of  the 
Sir  William  Peel  that  "  neither  an  enemy  nor  a  neutral  acting 
on  the  part  of  an  enemy  can  demand  restitution  of  captured 
property  on  the  sole  ground  of  capture  in  neutral  waters."  ^ 
It  may  be  mentioned,  however,  that  this  opinion  of  the  Supreme 
Court  in  this  case  was  practically  reversed  by  the  award  of 

» Stockton,  "Manual  for  Naval  Officers,"  p.  226. 

'  Moore's  "International  Arbitrations,"  vol.  IV,  pp.  3935-48. 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        401 

the  mixed  commission  for  the  arbitration  of  certain  claims  of 
British  subjects  against  the  United  States  arising  during  the 
Civil  War.  The  award  of  the  commission  was  made  upon  the 
ground  "that  the  capture  w^ithin  neutral  waters  of  Mexico  was 
absolutely  illegal  and  void." 

Proceeding  with  Convention  XIII,  we  find  in  Article  4  that 
"  it  is  provided  that  a  prize-court  cannot  be  set  up  by  a  bellig- 
erent on  neutral  territory  or  on  a  vessel  in  neutral  waters." 
This  is  in  accordance  with  the  historical  policy  of  the  United 
States,  established  definitely  from  the  attempts  of  M.  Genet  to 
establish  French  prize-courts  on  American  territory.  The  use 
of  the  word  "belligerent"  in  this  case  allows  the  establishment 
of  an  international  prize-court  on  neutral  territory. 

i8o.  The  Use  of  Neutral  Waters  as  a  Base  of  Naval  Opera- 
tions.— In  Article  5  of  the  Convention  XIII  now  under  con- 
sideration it  reads: 

"Belligerents  are  forbidden  to  use  neutral  ports  and  waters 
as  a  base  of  naval  operations  against  their  adversaries  and,  in 
particular,  to  erect  wireless-telegraph  stations  or  any  apparatus 
intended  to  serve  as  a  means  of  communication  with  the  bellig- 
erent forces  on  land  or  sea." 

The  first  part  of  this  article  embodies  the  principle  of  the 
first  part  of  the  second  rule  of  the  treaty  of  Washington  of  1871, 
which  is  worded  from  the  standpoint  of  the  duty  of  a  neutral 
state  as  follows: 

"A  neutral  government  is  bound  .  .  .  secondly,  not  to  per- 
mit or  suffer  either  belligerent  to  make  use  of  its  ports  or  waters 
as  the  base  of  naval  operations  against  the  other." 

The  possible  uses  of  a  port  or  waters  of  a  neutral  as  a  base 
of  supplies  and  operations  are  given  in  fuller  detail  in  many 
of  the  pertinent  articles  that  follow  in  this  convention. 

Jomini  gives  the  definition  of  a  base  of  operations  as  a  place 
from  which  an  army  draws  its  resources  and  reinforcements, 
from  which  it  sets  forth  on  an  offensive  expedition,  and  in 
which  it  finds  a  refuge  at  need. 


402  BELLIGERENTS  AND  NEUTRALS 

The  crucial  test  of  a  naval  base  in  these  days  in  a  neutral 
country  is  not  the  frequency  of  resort,  but  the  fulness  of  the 
necessary  supplies  and  repairs  attained  and  the  length  of  stay 
permitted.  In  the  days  of  the  auxiliary  steamers  like  the  Shen- 
andoah, a  Confederate  cruiser  during  the  Civil  War,  a  base  like 
Melbourne  gave  to  that  ship  the  opportunity  to  make  a  cam- 
paign that  extended  to  the  extreme  North  Pacific  Ocean  and 
enabled  a  return  from  there  to  the  home  base  of  English  waters 
without  resort  to  any  other  port  or  to  the  facilities  of  any  other 
base.^ 

During  the  Russo-Japanese  War  the  governor  of  Malta 
issued  a  proclamation  refusing  hospitality  to  belligerent  ships 
proceeding  to  the  seat  of  war  or  engaged  in  the  search  for  con-"^ 
traband. 

The  length  of  the  stay  of  a  belligerent  cruiser  is  also  a  de- 
termining question  as  to  the  use  of  a  port  as  a  base  or  asylum, 
and  it  should  not  exceed  the  time  for  the  urgent  necessities, 
and  if  prolonged  the  vessel  and  its  personnel  should  be  in- 
terned. 

i8i.  Obligations  of  Neutrals  as  to  Their  Waters. — "The 
supply  in  any  manner,"  says  Article  6  of  the  XIII  Convention 
of  the  second  Hague  conference,  "directly  or  indirectly,  by  a 
neutral  power  to  a  belligerent  power,  of  war-ships,  ammuni- 
tion, or  war  material  of  any  kind  is  forbidden." 

This  would  have  prevented  the  sale  of  discarded  arms  by 
the  United  States  Government  to  the  French  during  the 
Franco-German  War  of  1870.  Although  this  sale  began  before 
the  outbreak  of  hostilities,  its  continuance  afterward  was  un- 
justifiable. 

During  the  Russo-Japanese  War  several  merchant  steamers 
of  the  North  German  Lloyd  and  of  the  Hamburg-American 
steamship  lines  were  sold  to  the  Russian  Government  and  at 
once  enrolled  in  the  Russian  navy  as  second-class  cruisers. 
Hershey  says  of  this  that  "in  view  of  the  close  and  intimate 
1  Stockton,  "Manual  for  Naval  Officers,"  pp.  223-5. 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        403 

relations  which  subsist  between  these  companies  and  the 
German  Government,  the  sale  and  delivery  of  such  vessels 
would  seem  to  be  impossible  without  the  consent  or  connivance 
of  that  government,  and  it  can  hardly  be  contended  that  such 
consent  or  connivance  could  be  given  without  a  serious  breach 
of  obligation."^  The  readiness  with  which  these  vessels  were 
converted  into  vessels  of  war  shows  the  necessity  of  increased 
circumspection  in  such  matters.  Japan,  however,  made  no 
protest  as  to  this  transaction. 

Article  7  says  that: 

"  A  neutral  power  is  not  bound  to  prevent  the  export  or  tran- 
sit, on  behalf  of  either  belligerent,  of  arms,  munitions  of  war, 
or,  in  general,  of  anything  which  could  be  of  use  to  an  army 
or  fleet." 

Article  8  reads  that: 

"A  neutral  government  is  bound  to  employ  the  means  at 
its  disposal  to  prevent  the  fitting  out  or  arming  of  any  vessel 
within  its  jurisdiction  which  it  has  reason  to  believe  is  intended 
to  cruise  or  engage  in  hostile  operations  against  a  power  with 
which  that  government  is  at  peace.  It  is  also  bound  to  display 
the  same  vigilance  to  prevent  the  departure  from  its  jurisdic- 
tion of  any  vessel  intended  to  cruise  or  engage  in  hostile  opera- 
tions which  has  been  adapted  in  whole  or  in  part  within  the 
said  jurisdiction  to  warlike  use." 

This  article  is  substantially  the  first  rule  of  the  treaty  of 
Washington  in  regard  to  the  Confederate  cruiser  Alabama  and 
others  of  the  same  nature.  This  has  been  referred  to  in  previous 
pages.  For  the  phrase  "due  diligence"  the  term  "means  at 
its  disposal"  has  been  substituted.  It  would  seem  both  from 
the  intent  and  wording  of  the  above  article  that  the  construc- 
tion or  sale  of  any  vessel  which  is  adapted  to  a  warlike  use  is 
forbidden  to  the  neutral.  By  this  article  neither  the  sale  of 
the  German  vessels  just  referred  to  nor  the  sale  and  delivery  of 
a  torpedo-boat  for  Japanese  use  by  Americans  in  the  same  war 
*  Hershey,  "The  Russo-Japanese  War,"  p.  110. 


404  BELLIGERENTS^  AND  NEUTRALS 

would  be  permissible,  even  if  the  latter  goes  as  cargo  instead 
of  under  its  own  propulsion. 

Article  9  says:  "A  neutral  power  must  apply  impartially  to 
the  two  belligerents  the  conditions,  restrictions,  or  prohibitions 
issued  by  it  in  regard  to  the  admission  into  its  ports,  road- 
steads or  territorial  waters  of  belligerent  war-ships  or  of  their 
prizes. 

"Nevertheless,  a  neutral  power  may  forbid  a  belligerent 
vessel  which  has  failed  to  conform  to  the  orders  and  regulations 
made  by  it,  or  which  has  violated  neutrality,  to  enter  its  ports 
or  roadsteads." 

In  Article  10  it  is  stated  that: 

"The  neutrality  of  a  power  is  not  affected  by  the  mere  pas- 
sage through  its  territorial  waters  of  war-ships  or  prizes  belong- 
ing to  belligerents";  while,  in  Article  11,  "a  neutral  power 
may  allow  belligerent  war-ships  to  employ  its  licensed  pilots." 
This  means,  as  generally  understood,  local  pilots  rather  than 
coastal  pilots  or  navigators. 

Article  12  says  that: 

"In  default  of  special  provisions  to  the  contrary  in  the  laws 
of  a  neutral  power,  war-ships  of  the  belligerent  are  forbidden 
to  remain  in  the  ports,  roadsteads,  or  territorial  waters  of  said 
power  for  more  than  twenty-four  hours,  except  in  the  cases 
covered  by  the  present  convention." 

This  article  is  vague  as  it  allows  special  provisions  to  the 
contrary  to  its  main  object,  the  limitation  of  a  stay  in  a  neu- 
tral port  to  twenty-four  hours.  It  comes  very  near  to  allowing 
a  belligerent  to  base  his  operations  from  neutral  waters  in  vio- 
lation of  a  previous  article  of  the  convention.  It  will  have  to 
be  made  a  special  provision,  however,  which  should  be  pub- 
lished, to  be  applied  impartially  to  all  belligerents.  War-ships 
in  this  case  should  include  auxiliaries. 

Articles  13  and  14  say  that: 

13.  "If  a  power  which  has  been  informed  of  the  outbreak 
of  hostilities  learns  that  a  war-ship  of  a  belligerent  is  in  one  of 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        405 

its  ports  or  roadsteads,  or  in  its  territorial  waters  it  must 
notify  the  said  ship  to  depart  within  twenty-four  hours  or 
within  the  time  prescribed  by  the  local  laws. 

"A  belligerent  war-ship  may  not  prolong  its  stay  in  a  neu- 
tral port  beyond  the  time  permitted  except  on  account  of 
damage  or  stress  of  weather.  It  must  depart  a§  soon  as  the 
cause  of  the  delay  is  at  an  end." 

14.  "The  regulations  as  to  the  length  of  time  which  such 
vessels  may  remain  in  neutral  ports,  roadsteads  or  waters  do 
not  apply  to  war-ships  devoted  exclusively  to  religious,  scien- 
tific, or  philanthropic  purposes." 

Article  15  says:  "In  default  of  special  'provisions  to  the  con- 
trary in  the  laws  of  a  neutral  power,  the  maximum  number  of 
war-ships  belonging  to  a  belligerent  which  may  be  in  one  of  the 
ports  or  roadsteads  of  that  power  simultaneously  shall  be 
three." 

Article  16.  "When  war-ships  belonging  to  both  belligerents 
are  present  simultaneously  in  a  neutral  port  or  roadstead,  a 
period  of  not  less  than  twenty-four  hours  must  elapse  between 
the  departure  of  the  ship  belonging  to  one  belligerent  and  the 
departure  of  the  ship  belonging  to  the  other. 

"The  order  of  departure  is  determined  by  the  order  of  ar- 
rival, unless  the  ship  which  arrived  first  is  so  circumstanced 
that  an  extension  of  its  stay  is  permissible. 

"A  belligerent  war-ship  may  not  leave  a  neutral  port  or 
roadstead  until  twenty-four  hours  after  the  departure  of  a 
merchant  ship  flying  the  flag  of  its  adversary." 

These  rules  are  in  accordance  with  accepted  usage,  and  their 
utility  was  borne  out  largely  by  the  experience  of  neutral 
powers  during  our  Civil  War.  With  the  exception  of  Article 
15  they  have  the  merit  of  definiteness  without  the  vagueness 
of  preceding  rules. 

Article  17.  "In  neutral  ports  and  roadsteads  belligerent 
war-ships  may  only  carry  out  such  repairs  as  are  absolutely 
necessary  to  render  them  seaworthy  and  may  not  add  in  any 


406  BELLIGERENTS  AND  NEUTRALS 

manner  whatever  to  their  fighting  force.  The  local  authorities 
of  the  neutral  power  shall  decide  what  repairs  are  necessary, 
and  these  must  be  carried  out  with  the  least  possible  delay." 

This  rule  is  in  accord  with  accepted  usage  and  was  the  prac- 
tical rule  in  force  during  the  Russo-Japanese  War  in  the  vari- 
ous neutral  ports  in  which  the  Russian  vessels  took  refuge  after  t^ 
the  defeat  of  their  fleet. 

Article  18.  "Belligerent  war-ships  may  not  make  use  of  neu- 
tral ports,  roadsteads,  and  territorial  waters  for  replenishing 
or  increasing  their  supplies  of  war  material  or  their  armament, 
or  for  completing  their  crews." 

It  will  be  observed  by  the  United  States  neutrality  procla- 
mation of  1914,  in  Appendix  V,  that  a  certain  accession  is  al- 
lowed, notwithstanding  this  article,  to  the  crew  of  a  visiting 
belligerent.  The  substance  of  the  second  rule  of  the  treaty  of 
Washington  of  1871  is  given  here,  the  first  half  of  it  being  con- 
tained in  Article  5.  This  may  be  held  as  a  vindication  of  the 
American  contention  shown  in  that  treaty  as  to  a  proper 
neutrality. 

Article  19.  "Belligerent  war-ships  may  only  be  revictualled 
in  neutral  ports  or  roadsteads  to  bring  up  their  supplies  to  the 
peace  standard. 

"Similarly  these  vessels  may  only  ship  sufficient  fuel  to  en- 
able them  to  reach  the  nearest  port  in  their  own  country. 
They  may,  on  the  other  hand,  fill  up  their  bunkers  built  to 
carry  fuel  in  neutral  countries  which  have  adopted  this  method 
of  determining  the  amount  of  fuel  to  be  supplied. 

/'If,  in  accordance  with  the  law  of  the  neutral  power,  the 
ships  are  only  supplied  with  coal  twenty-four  hours  after  their 
arrival,  the  permissible  duration  of  their  stay  is  extended  by 
twenty-four  hours." 

"This  article,"  says  Higgins,  "completely  fails  to  satisfy  the 
requirements  of  powers  which  set  a  standard  of  neutrality 
and  desire  strictly  to  maintain  the  rule  that  neutrals  must 
abstain  from  rendering  assistance  to  belligerents.  .  .  .  This 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        407 

article  has  not  been  accepted  by  Great  Britain  and  Japan. "^ 
In  its  working  it  is  so  uneven  that  it  would  be  better  to  do  away 
with  the  discrimination  that  the  United  States  makes  and 
allow  the  general  filling  of  bunkers  and  tanks  that  are  used 
habitually  for  the  carriage  of  coal  or  oil,  and  when  this  should 
cause  a  decided  aid  which  is  not  impartial  or  equal  to  both 
belligerents  there  should  be  a  denial  of  the  use  of  coaling  ports 
entirely,  as  Great  Britain  did  to  the  Russian  fleet  bound  for 
warlike  operations  to  Asiatic  waters  in  the  Russo-Turkish 
War. 

Article  20.  "Belligerent  war-ships  which  have  shipped  fuel 
in  a  port  belonging  to  a  neutral  power  may  not  within  the  suc- 
ceeding three  months  replenish  their  supply  in  a  port  of  the 
same  power." 

Article  21.  "A  prize  may  only  be  brought  into  a  neutral 
port  on  account  of  unseaworthiness,  stress  of  weather,  or  want 
of  fuel  or  provisions. 

"It  must  leave  as  soon  as  the  circumstances  which  justified 
its  entry  are  at  an  end.  If  it  does  not,  the  neutral  power  must 
order  it  to  leave  at  once;  should  it  fail  to  obey,  the  neutral 
power  must  employ  the  means  at  its  disposal  to  release  it  with 
its  officers  and  crew  and  to  intern  the  prize-crew." 

Article  22.  "  A  neutral  power  must,  similarly,  release  a  prize 
brought  into  one  of  its  ports  under  circumstances  other  than 
those  referred  to  in  Article  21." 

The  following  article — No.  23 — was  not  accepted  by  the 
United  States,  Great  Britain,  and  Japan  and  was  reserved  by 
them  in  signing  and  in  its  ratification.     It  reads: 

"A  neutral  power  may  allow  prizes  to  enter  its  ports  and 
roadsteads,  whether  under  convoy  or  not,  when  they  are  brought 
there  to  be  sequestrated  pending  the  decision  of  a  prize-court. 
It  may  have  the  prize  taken  into  another  of  its  ports. 

"If  the  prize  is  convoyed  by  a  warship,  the  prize-crew  may 
go  on  board  the  convoying  ship. 

*  Higgins,  "Hague  Conferences,"  p.  477. 


408  BELLIGERENTS  AND  NEUTRALS 

"If  the  prize  is  not  under  convoy,  the  prize-crew  are  left  at 
liberty." 

The  refusal  to  allow  the  above  aid  to  a  belligerent  as  to  prizes 
in  war  time  is  in  accordance  with  the  historical  position  of  the 
United  States  as  a  neutral  power  and  in  accordance  with  Brit- 
ish usages.  It  would  enable  a  belligerent  cruiser  to  carry  on 
operations  without  the  inconvenience  of  sending  prizes  to 
home  ports. 

Article  24  reads  that: 

"If,  notwithstanding  the  notification  of  the  neutral  power, 
a  belligerent  ship  of  war  does  not  leave  a  port  where  it  is  not 
entitled  to  remain,  the  neutral  power  is  entitled  to  take  such 
measures  as  it  considers  necessary  to  render  the  ship  incapable 
of  putting  to  sea  so  long  as  the  war  lasts,  and  the  commanding 
officer  of  the  ship  must  facilitate  the  execution  of  such  mea- 
sures. 

"When  a  belligerent  ship  is  detained  by  a  neutral  power, 
the  officers  and  crew  are  likewise  detained. 

"The  officers  and  crew  so  detained  may  be  left  in  the  ship 
or  kept  either  in  another  vessel  or  on  land  and  may  be  sub- 
jected to  such  measures  of  restriction  as  it  may  appear  neces- 
sary to  impose  upon  them.  A  sufficient  number  of  men  must, 
however,  be  always  left  on  board  for  looking  after  the  vessel. 

"The  officers  may  be  left  at  liberty  on  giving  their  word  not 
to  quit  the  neutral  territory  without  permission." 

This  treatment  and  the  subsequent  internment  are  similar 
in  principle  to  that  of  land  forces  under  similar  circumstances. 

Article  25  reads  that: 

"A  neutral  power  is  bound  to  exercise  such  vigilance  as  the 
means  at  its  disposal  permit  to  prevent  any  violation  of  the 
provisions  of  the  above  articles  occurring  in  its  ports,  road- 
steads, or  its  waters." 

By  this  article  the  incorporation  of  the  three  rules  of  the 
treaty  of  Washington  into  a  great  international  act  was  com- 
pleted by  the  second  Hague  conference.     The  words  "to  exer- 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        409 

cise  due  diligence"  in  the  treaty  of  Washington  were  replaced 
in  the  above  article  by  the  words  "  to  exercise  such  vigilance  as 
the  means  at  its  disposal  permit,"^ 

By  Article  26  "the  exercise  of  a  neutral  power  of  the  rights 
laid  down  in  the  present  convention  can  never  be  considered 
as  an  unfriendly  act  by  either  belligerent  who  has  accepted  the 
articles  relating  thereto." 

This  article  and  the  general  tenor  of  the  convention  should 
strengthen  the  action  and  duties  of  a  weak  neutral  power. 
The  convention  is,  however,  far  from  perfect.  There  are  too 
many  provisions  allowing  varying  action  on  the  part  of  a  neu- 
tral. There  is  also  more  stress  laid  upon  the  rights  of  neutrals 
than  their  obligations,  and  it  is  hoped  that  in  a  future  Hague 
conference  a  revision  will  be  made  of  this  convention. 

182.  The  Rights  of  Visit  and  Search. — This  is  a  great  and 
ancient  war  right  of  the  belligerent  powers  exercised  on  the  high 
seas  toward  neutrals  and  enemies.  Co-existent  with  and  grow- 
ing out  of  the  right  of  capture,  it  is  essential  to  ascertain 
whether  neutral  vessels  are  really  such  or  have  made  them- 
selves subject  to  capture  by  the  carriage  of  contraband,  un- 
neutral service,  or  violation  of  a  blockade. 

Chief  Justice  Marshall  says  upon  this  subject:  "It  (the 
right  of  search)  has  been  truly  denominated  a  right  growing 
ov.t  of,  and  ancillary  to,  the  greater  right  of  capture.  When 
this  greater  right  may  be  legally  exercised  without  search,  the 
right  of  search  can  never  rise  or  come  into  question. "^ 

Sir  William  Scott  (afterward  Lord  Stowell)  also  said  in  the 
famous  case  of  the  Maria: 

"The  right  of  visiting  and  searching  merchant  ships  upon 
the  high  seas,  whatever  be  the  ships,  whatever  be  the  cargoes, 
whatever  be  the  destination,  is  an  incontestable  right  of  the 
lawfully  commissioned  cruisers  of  a  belligerent  nation.  .  .  . 
This  right  is  so  clear  in  principle,  that  no  man  can  deny  it  who 

^Higgins,  "Hague  Conferences,"  pp.  453,  480. 

»C.  J.  Marshall,  The  Nereide,  1815  (9  Cranch,  388,  27). 


410  BELLIGERENTS  AND  NEUTRALS 

admits  the  legality  of  maritime  capture,  because  if  you  are  not 
at  liberty  to  ascertain  by  suflBcient  inquiry  whether  there  is 
property  that  can  legally  be  captured,  it  is  impossible  to  cap- 
ture. .  .  .  The  right  is  equally  clear  in  practice;  for  the  prac- 
tice is  uniform  and  universal  upon  the  subject."^ 

As  the  right  of  visit  and  of  capture  is  the  right  exercised  only 
by  a  belligerent  under  direct  national  authority,  it  is  conse- 
quently confined  in  its  exercise  to  public  vessels  of  war  duly 
commissioned  by  the  state.  On  the  other  hand,  this  right  can 
only  be  exercised  toward  enemy  vessels  and  neutral  merchant 
or  privately  owned  vessels. 

"As  a  belligerent  right  it  cannot  be  questioned,  but  it  must 
be  conducted  with  as  much  regard  to  the  rights  and  safety  of 
the  vessel  detained  as  is  consistent  with  a  thorough  examina- 
tion of  the  character  and  voyage.  Any  detention  of  the  vessel 
beyond  what  is  necessary  is  unlawful,  as  is  also  any  transgres- 
sion of  the  bounds  within  which  the  examination  should  be 
confined."  ^ 

This  right  should  be  exercised,  as  stated  above,  with  due  con- 
sideration and  in  conformity  (when  existing)  with  treaty  pro- 
visions by  the  boarding  vessel  whose  national  colors  should 
always  be  displayed  at  the  time. 

"The  vessel  is  brought  to  by  firing  a  gun  with  blank  charge. 
If  this  is  not  sufficient  to  cause  her  to  lie  to,  a  shot  is  fired  across 
her  bows,  and  in  case  of  flight  or  resistance  force  can  be  used  to 
compel  the  vessel  to  surrender. 

"The  boarding  vessel  should  then  send  one  of  its  smaller 
boats  alongside  with  an  officer  in  charge  wearing  side-arms  to 
conduct  the  search.  Arms  may  be  carried  in  the  boat,  but  not 
upon  the  persons  of  the  men.  When  the  officer  goes  on  board 
the  vessel  he  may  be  accompanied  by  not  more  than  two 
men,  unarmed,  and  he  should  at  first  examine  the  vessel's 
papers  to  ascertain  her  nationality,  the  nature  of  her  cargo, 
and  the  ports  of  departure  and  destination.     If  the  papers 

»  Scott's  "Cases,"  p.  858.  »  The  Anna  Maria  (2  Wheaton,  327). 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        411 

show  contraband,  an  offence  in  respect  of  blockade,  or  enemy 
service  the  vessel  should  be  seized;  otherwise  she  should 
be  released,  unless  suspicious  circumstances  justify  a  further 
search.  If  the  vessel  be  released  an  entry  in  the  log-book  to 
that  effect  should  be  made  by  the  boarding-officer."^ 

In  searching  a  vessel  it  should  be  done  in  presence  of  the 
master  of  the  vessel,  no  force  being  applied.  If  the  master 
should  not  open  locked  places,  or  assist  in  the  examination  or 
search,  sufficient  cause  is  given  for  seizing  the  vessel  as  resist- 
ing search.  In  case  of  suspicious  developments  of  sufficient 
gravity  the  vessel  can  be  detained  and  sent  into  port  for  a 
more  thorough  examination.  In  case  of  innocence  the  vessel 
is  entitled  in  such  cases  to  indemnity  for  losses  of  time,  etc. 

By  the  declaration  of  London,  forcible  resistance  to  the  legit- 
imate exercise  of  the  right  of  stoppage,  search,  and  capture 
involves  in  all  cases  condemnation  of  the  vessel.  The  cargo  is 
liable  to  the  same  treatment  as  that  given  to  the  cargo  of  an 
enemy  vessel.  Goods  belonging  to  the  master  of  the  vessel  or 
its  owner  are  treated  as  if  they  were  enemy  goods.^  An  at- 
tempt to  escape  is  not  considered  as  forcible  resistance  as  the 
term  is  used  in  its  literal  sense.  Force  can  be  used  to  overcome 
either  resistance  or  flight,  but  condemnation  follows  forcible 
resistance  alone.  An  authority  given  privately  owned  vessels 
to  carry  arms  for  protection  does  not  give  it  exemption  from 
proper  visit  and  search. 

183.  Convoy. — Articles  61  and  62  of  the  declaration  of 
London,  of  which  the  United  States  is  a  signatory  and  ratifying 
power,  treat  the  subject  of  convoy  as  follows: 

"Neutral  vessels  under  national  convoy  are  exempt  from 
search.  The  commander  of  a  convoy  gives,  in  writing,  at  the 
request  of  the  commander  of  a  belligerent  war-ship,  all  informa- 
tion as  to  the  character  of  the  vessels  and  their  cargoes,  which 
could  be  obtained  by  search. 

'  Stockton,  "Laws  and  Usages  of  War  at  Sea,"  art.  32. 
'  Declaration  of  London,  Art.  63.     See  Appendix  IV. 


412  BELLIGERENTS  AND  NEUTRALS 

"If  the  commander  of  the  belUgerent  war-ship  has  reason 
to  suspect  that  the  confidence  of  the  commander  of  the  convoy 
has  been  abused,  he  communicates  his  suspicions  to  him.  In 
such  a  case  it  is  for  the  commander  of  the  convoy  alone  to  in- 
vestigate the  matter.  He  must  record  the  result  of  such  in- 
vestigation in  a  report,  of  which  a  copy  is  handed  to  the  oflBcer 
of  the  war-ship.  If,  in  the  opinion  of  the  commander  of  the 
convoy,  the  facts  shown  in  the  report  justify  the  capture  of 
one  or  more  vessels,  the  protection  of  the  convoy  must  be 
withdrawn  from  such  vessels."^ 

This  exemption  from  search  of  neutral  merchant  vessels 
under  convoy  of  a  man-of-war  of  their  own  nationality  was 
largely  due  to  the  efforts  of  the  American  delegation  at  the 
London  naval  conference  and  is  in  accordance  with  American 
contentions  in  the  past. 

If  a  neutral  vessel  seeks  the  convoy  of  enemy  men-of-war 
her  position,  according  to  general  ruling,  becomes  that  of  an 
enemy  vessel  from  what  may  legitimately  be  considered  as 
constructive  resistance.  By  a  treaty  with  Prussia  of  1785,  re- 
vived in  1828,  and  held  to  be  still  in  force  with  Germany,  if 
Germany  and  the  United  States  are  both  neutrals  or  have  a 
common  enemy  there  is  a  mutual  right  of  protection  and  con- 
voy to  each  other's  merchantmen. 

184.  Spoliation  of  Papers. — If  a  vessel  presents  fraudulent 
papers,  conceals,  alters,  or  destroys  papers  or  is  without  the 
necessary  papers  she  can  be  properly  detained  or  seized.  This 
is  generally  known  as  the  spoliation  of  papers. 

A  discussion  of  this  matter  in  the  accompanying  report  to 
the  declaration  of  London,  drawn  up  by  Doctor  L.  Renault, 
reads: 

"It  is  perhaps  useful  to  indicate  certain  cases  in  which  the 

capture  of  a  vessel  would  be  justified,  whatever  be  the  ultimate 

decision  of  the  prize-court.     Notably,  there  is  the  case  where 

some  or  all  of  the  ship's  papers  have  been  thrown  overboard, 

*  See  declaration  of  London,  Appendix  IV. 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        413 

suppressed,  or  intentionally  destroyed  on  the  initiative  of  the 
master  or  one  of  the  crew  or  passengers.  There  is  in  such  a 
case  an  element  which  will  justify  any  suspicion  and  afford  an 
excuse  for  capturing  the  vessel,  subject  to  the  master's  ability 
to  account  for  his  action  before  the  prize-court.  Even  if  the 
court  should  accept  the  explanation  given  and  should  not  find 
any  reason  for  condemnation,  the  parties  interested  cannot 
hope  to  recover  compensation. 

"  An  analogous  case  would  be  that  in  which  there  were  found 
on  board  two  sets  of  papers,  or  false  or  forged  papers,  if  this 
irregularity  were  connected  with  circumstances  calculated  to 
contribute  to  the  capture  of  the  vessel."^ 

185.  Hostile  Expeditions. — ^The  formation  of  hostile  ex- 
peditions in  neutral  territory  and  their  departure  for  warlike 
operations  therefrom  is  a  violation  of  the  tenets  of  international 
law  and,  in  most  cases,  of  the  municipal  laws  of  states. 

So  far  as  international  law  is  concerned  the  following  rules 
are  in  force  to  the  signatories  of  The  Hague  Conventions  V 
and  XIII  of  1907.  In  Convention  V  it  is  stated,  in  Article  4, 
that  "corps  of  combatants  cannot  be  formed  nor  recruiting 
offices  opened  on  the  territory  of  a  neutral  power  in  the  inter- 
ests of  belligerents."  By  Article  8  of  Convention  XIII  we  have 
also  seen  that  "a  neutral  government  is  bound  to  employ  the 
means  at  its  disposal  ...  to  prevent  the  departure  from  its 
jurisdiction  of  any  vessel  intended  to  cruise  or  engage  in  hos- 
tile operations  which  has  been  adapted  in  whole  or  in  part 
within  the  said  jurisdiction  to  warlike  use."  This  general  re- 
striction is  supplemented  by 'a  previous  prohibition  in  Article 
5  of  the  same  convention  in  which  the  belligerents  are  forbidden 
to  use  and,  by  analogy,  neutrals  prohibited  from  allowing  the 
use  by  belligerents  of  neutral  waters  as  a  base  of  naval  opera- 
tions against  their  adversaries. 

A  hostile  expedition  in  the  sense  under  discussion  can  be 
defined  in  accordance  with  international  law  as  one  starting 
•  Declaration  of  London,  accompanying  report,  Appendix  IV. 


414  BELLIGERENTS  AND  NEUTRALS 

from  neutral  territory  with  the  present  purpose  of  entering 
into  hostilities;  it  should  be  under  naval  or  military  command, 
and  it  should  be  organized  with  a  view  to  acts  of  war  against 
a  belligerent  or  a  power  at  peace  with  the  country  from  which 
it  departs. 

The  last  clause  includes  assistance  in  case  of  an  insurrection 
or  other  form  of  domestic  violence  which  has  not  attained  a 
recognition  of  belligerency. 

"It  was  decided  in  1870,  when  a  large  number  of  French  and 
Germans  returned  to  their  respective  countries  to  enter  military 
service  that,  so  long  as  they  travelled  as  individuals  or  not  or- 
ganized, they  did  not  answer  to  the  description  of  a  hostile 
expedition,  even  if  there  were  large  consignments  of  arms  and 
ammunition  to  the  French  Government  on  board  of  the  same 
ship  which  carried  the  French  flag."  ^  The  arms  and  ammuni- 
tion in  this  case  were  not  connected  with  the  individual  passen- 
gers referred  to  but  carried  in  the  way  of  ordinary  commerce. 
It  has  been  customary  in  all  European  wars  to  call  home  the 
reservists  to  serve  with  the  armies  of  the  belligerents  mobilized 
upon  a  war  footing.  Of  this  phase  of  modern  warfare  the  re- 
port accompanying  the  London  naval  conference  speaks  as 
follows:  "Supposing  the  case  is  one  of  individuals  who  are 
natives  of  a  continental  European  country  and  are  settled  in 
America;  these  individuals  have  military  obligations  toward 
their  country  of  origin;  they  have,  for  instance,  to  belong  to 
the  reserve  of  the  active  army  of  that  country.  Their  country 
is  at  war  and  they  sail  to  perform  their  service.  ...  It  would 
be  difficult,  perhaps  even  impossible,  without  having  recourse 
to  vexatious  measures  to  which  neutral  governments  would  not 
submit,  to  pick  out  of  the  passengers  in  a  vessel,  those  who  are 
bound  to  perform  military  service  and  are  on  their  way  to  do 
so."'*  In  the  same  way,  individuals  going  singly  to  enlist  in  a 
belligerent  cause  do  not  constitute  a  hostile  expedition. 

» Stockton,  "Manual  of  Int.  Law,"  p.  228. 
'  Higgins,  "Hague  Conferences,"  p.  594. 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        415 

From  a  municipal  point  of  view  we  will  quote  the  law  of  the 
United  States  upon  this  matter.  Section  5286  of  the  United 
States  Revised  Statutes  reads: 

"Every  person  who  within  the  territory  or  jurisdiction  of 
the  United  States  begins,  or  sets  on  foot,  or  prepares  the  means 
for  any  mihtary  expedition  or  enterprise  to  be  carried  on  from 
thence  against  the  territory  or  dominions  of  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people  with  whom  the 
United  States  are  at  peace,  shall  be  deemed  guilty  of  a  high 
misdemeanor,"  etc. 

President  Cleveland  in  his  proclamation  in  regard  to  the 
Cuban  insurrection,  dated  July  27,  1896,  declared  that  in  ac- 
cordance with  the  judicial  decision  of  the  United  States  Supreme 
Court  a  military  expedition  under  our  neutrality  laws  consists 
of  "  any  combination  of  persons  organized  in  the  United  States 
for  the  purpose  of  proceeding  to  make  war  upon  a  foreign  coun- 
try with  which  the  United  States  is  at  peace  and  provided  with 
arms  to  be  used  for  such  purpose,"  and,  furthermore,  that  the 
providing  or  preparing  of  the  means  for  such  military  expedi- 
tion or  enterprise  includes  the  furnishing  or  aiding  in  its  trans- 
portation. 

i86.  Right  of  Angary. — The  right  of  angary,  which  literally 
means  the  right  of  transport,  was  formerly  confined  to  pur- 
poses of  that  nature  so  far  as  neutrals  were  concerned.  It  was 
a  practice  of  belligerents  to  use,  by  force  if  necessary,  neutral 
merchant  vessels  and  their  crews  for  the  purpose  of  transport- 
ing troops,  ammunition,  and  provisions  to  certain  destinations, 
paying  freight,  etc.,  in  advance. 

This  ancient  right  has  fallen  into  disuse  and  is  to  a  growing 
extent  supplanted  by  a  modern  right  under  the  same  name 
which  comprises  the  right  of  belligerents  to  make  use  of  or 
destroy,  for  the  purpose  of  necessary  offence  and  defence,  neu- 
tral property  on  the  high  seas  or  the  territories  of  either  bellig- 
erent. 

The  objective  of  the  right  of  angary,  according  to  Oppen- 


416  BELLIGERENTS  AND  NEUTRALS 

helm,  "is  such  property  of  subjects  of  neutral  states  as  retains 
its  neutral  character  from  its  temporary  position  on  belligerent 
territory  and  which,  therefore,  is  not  vested  with  enemy  char- 
acter." 1 

The  United  States  Naval  War  Code  of  1900  states  that: 

"  If  military  necessity  should  require  it,  neutral  vessels  found 
within  the  limits  of  belligerent  authority  may  be  seized  and 
destroyed  or  otherwise  used  for  military  purposes,  but  in  such 
cases  the  owners  of  the  neutral  vessels  must  be  fully  recom- 
pensed. The  amount  of  the  indemnity  should,  if  practicable, 
be  agreed  upon  in  advance  with  the  owner  or  master  of  the 
vessel;  due  regard  must  be  had  for  treaty  stipulations  upon 
these  matters."^ 

It  might  be  mentioned  that  in  these  times  the  right  of  angary 
as  just  expressed  exists  on  land  as  well  as  at  sea.  An  applica- 
tion of  the  right  happened  in  1871,  during  the  Franco-German 
War.  The  German  forces  sunk  some  British  vessels  lying  in 
the  Seine  River  for  the  purpose  of  blocking  the  navigation  of 
the  river  to  the  French  gunboats.  The  German  Government 
did  not  recompense  the  owners  of  the  vessels  at  the  time  but 
afterward  paid  indemnities. 

In  Article  19  of  Convention  V  of  the  second  Hague  con- 
ference the  right  of  angary  is  provided  for  in  the  case  of  neutral 
railway  material  coming  into  the  territory  belonging  to  or  oc- 
cupied by  a  belligerent  power.  Adequate  compensation  is 
also  required. 

This  subject  needs  further  attention  in  future  international 
conferences  and  could  be  taken  up  in  connection  with  the 
third  wish  {vasu)  of  the  final  act  of  the  second  Hague  confer- 
ence, which  reads  as  follows: 

"  The  conference  expresses  the  earnest  desire  that  the  powers 
should  regulate  by  special  treaties  the  situation,  as  regards 
military  charges,  of  foreigners  established  in  their  territories."' 

'  Oppenheim,  2d  ed.,  vol.  II,  p.  447. 

•  Stockton,  "Laws  and  Usages  of  War  at  Sea,"  art.  6. 

•Higgins,  "Hague  Conferences,"  p.  69. 


RIGHTS  OF  NEUTRALS  AND  BELLIGERENTS        417 


TOPICS  AND  REFERENCES 

1.  The  Inviolability  of  Neutral  Territory  and  Waters^ 

Westlake,  "International  Law,"  2d  ed.,  233-5.  Hall,  "Inter- 
national Law,"  6th  ed.,  594-8.  Naval  War  College,  "Inter- 
national Law  Topics,"  etc.,  1913,  11-53. 

2.  The  Use  of  Neutral  Waters  as  a  Base  of  Naval  Operations — 

Oppenheim,  "International  Law,"  2d  ed.,  vol.  II,  400-5.  Moore's 
"Digest  of  International  Law,"  vol.  VII,  934-950.  Westlake, 
2d  ed.,  vol.  II,  222. 

3.  Obligation  of  Neutrals  as  to  Their  Waters — 

Moore's  "Digest  of  International  Law,"  vol.  VII,  885-908.  Naval 
War  College,  "International  Law  Topics,"  1911,  9-36.  Davis, 
"International  Law,"  3d  ed.,  422-5,  434-440. 

4.  Rights  of  Visit  and  Search — 

Woolsey,  6th  ed.,  357-386.  Hall,  "International  Law,"  6th  ed., 
chap.  X.    Oppenheim,  2d  ed.,  vol.  II,  chap.  VI. 

5.  Convoy — 

Naval  War  College.  "International  Law  Topics,"  etc.,  1911,  46-50. 
Westlake,  2d  ed.,  vol.  II,  300.  Davis,  "International  Law," 
3d  ed.,  488-491. 

6.  Spoliation  of  Papers — 

Moore's  "Digest,"  vol.  VII,  485-7.  Hall,  6th  ed.,  736-8.  Op- 
penheim, 2d  ed.,  vol.  II,  543-5. 

/ 

7.  Hostile  Expeditions — 

Fenwick,  "Neutrality  Laws  of  the  United  States,"  55-79.  Op- 
penheim, 2d  ed.,  vol.  II,  400.  Hall,  "International  Law,"  6th 
ed.,  602-6. 

8.  Right  of  Angary — 

Oppenheim,  2d  ed.,  vol.  II,  446-9,  385,  510.    Westlake,  2d  ed.,  vol. 
II,  134.    HaU,  6th  ed.,  741-3. 


CHAPTER  XXV 
BLOCKADE 

187.  Blockade — ^Its  Extent  and  Effectiveness. — By  block- 
ade we  mean  maritime  blockade  and  as  a  war  operation  alone. 
Blockade  of  an  enemy's  port  in  time  of  war  is  a  belligerent 
right  and  may  be  still  considered  as  a  major  naval  operation. 
It  must  be  established  between  legal  belligerents.  A  sea  block- 
ade may  be  for  purely  military  purposes,  to  mask  or  contain  a 
naval  force  of  the  enemy  and  prevent  it  operating  upon  the 
high  seas;  or  it  may  be  purely  commercial,  for  the  purpose  of 
the  stoppage  of  all  trade  and  commerce  of  the  port  and  the 
export  and  import  of  commercial  products  and  supplies  as  well 
as  foodstuffs  and  munitions  of  war.  A  blockade  duly  estab- 
lished may  of  course  combine  in  its  aims  both  military  and 
commercial  purposes. 

A  maritime  blockade  exists  not  only  before  the  entrances  to 
a  port  but  includes  its  approaches,  its  neighboring  marginal 
waters,  and  the  high  seas  near  by.  As,  ordinarily,  the  port,  its 
marginal  waters,  and  the  high  seas  are  used  by  vessels  of  all 
nations,  a  sea  blockade  is  one  closely  touching  the  trade  and 
shipping  of  neutral  nations;  in  fact,  as  a  rule,  those  who  are 
generally  engaged  in  the  evasion  of  blockade  in  vessels  of  any 
size  are  apt  to  be  neutral  subjects  in  neutral  vessels  and  the 
questions  concerning  sea  blockade  are  hence  questions  largely 
international  in  law  and  scope.  ^ 

The  conditions  of  a  blockade  are  treated  in  one  phase  or 
another  by  the  first  seven  articles  of  the  declaration  of  London, 
though  amplifications  also  follow  later.* 

» Stockton,  "Manual  for  Naval  Officers,"  p.  235. 
*  Declaration  of  London,  chap.  I,  Appendix  IV. 

418 


BLOCKADE  419 

It  is  provided,  first,  that  a  blockade  must  not  extend  beyond 
the  ports  and  coasts  belonging  to  or  occupied  by  the  enemy, 
which  Article  18  amplifies  by  stating  that  the  blockading  forces 
must  not  bar  access  to  neutral  ports  or  coasts.  Ports  of  a 
neutral  and  belligerent  may  easily  be  so  placed  geographically 
that  without  care  a  blockade  may  interfere  with  the  entry  to 
and  trade  of  a  neutral  port;  in  fact,  such  proximity  may  com- 
pel a  limitation  in  blockading  operations  affecting  it  in  both 
area  and  efficiency.  The  neutral  rights  to  innocent  free  trade 
and  passage  compels,  in  cases  of  this  kind,  such  limitations. 
There  is  another  reason  for  the  ruling  just  given,  and  that  is 
that  a  neutral  port  may  be  a  port  of  departure  and  supplies  of 
blockade-runners  and  yet  within  the  zone  of  blockading  opera- 
tions. In  this  case  too  close  supervision  of  such  a  port  may 
be  beyond  belligerent  rights  and  injurious  to  the  commerce 
of  the  port.  Such  cases  arose  during  the  American  Civil  War 
which  led  to  almost  a  Federal  blockade  of  Nassau,  in  the 
Bahamas,  and  the  Bermudas,  and  caused  the  denial  of  the  use 
of  Nassau  to  Federal  cruisers.^ 

In  accordance  with  the  declaration  of  Paris,  of  1856,  "a 
blockade,  to  be  binding,  must  be,  first  of  all,  effective;  that  is  to 
say,  it  must  be  maintained  by  a  force  sufficient,  really,  to  pre- 
vent access  to  the  enemy  coast-line."  This  is  reiterated  by  the 
declaration  of  London.  The  declaration  of  Paris  binds  by 
accession  or  as  original  signatory  almost  all  of  the  maritime 
states,  while  in  the  case  of  the  United  States  it  not  only  has 
accepted,  in  principle,  the  declaration  of  Paris  but  is,  in  fact 
actually  bound  by  the  declaration  of  London.^ 

The  question  of  effectiveness  is  a  serious  one  and  much  dis- 
puted; it  has  to  be  decided  as  a  fact  on  the  merits  of  each  case 
by  proper  judicial  authority,  which  at  present  is  the  national 
prize-courts  of  the  captor — eventually,  we  hope,  as  a  last  re- 
sort, by  the  proposed  international  prize-court.  At  times  the 
feeling  prevails  that  the  national  prize-court  of  the  captor  is 

*  Declaration  of  London,  Art.  2.  *  Declaration  of  London,  Art.  3. 


420  BELLIGERENTS  AND  NEUTRALS 

apt  to  consider  a  blockade  effective  if  so  declared  by  its  national 
government. 

At  present,  when  a  neutral  desires  to  contest  decisions  of  a 
belligerent  prize-court  in  which  it  is  interested,  the  matter  is 
apt  to  be  finally  settled  either  by  diplomatic  discussions,  by 
decisions  of  mixed  commissions,  or  by  temporary  tribunals  of 
The  Hague.i 

A  blockade  must  be  continuously  maintained;  if  it  is  with- 
drawn or  raised  it  must  be  re-established  with  the  formalities 
of  its  original  establishment.  By  usage,  however,  a  blockade 
is  not  regarded  as  raised  when  in  stress  of  weather  the  block- 
ading forces  are  temporarily  withdrawn.  This  is  less  likely  to 
happen  in  these  days  of  full-powered  steamers.  If  a  blockade 
is  withdrawn  or  raised  by  the  force  of  arms  or  the  approach  of 
a  superior  force  it  must,  as  just  mentioned,  be  formally  re- 
established in  all  its  effectiveness. 

A  blockade  must  be  impartially  applied  to  the  ships  of  all 
nations.  The  commander  of  a  blockading  force  may,  however, 
give  permission  to  a  neutral  war  vessel  to  enter  and  subse- 
quently to  leave  a  blockaded  port.  Although  the  senior  officer 
of  the  blockading  force  must  act  impartially,  as  just  stated, 
the  accompanying  report  of  the  declaration  of  London  states 
that,  "  nevertheless,  the  mere  fact  that  he  has  let  a  war-ship  pass 
does  not  oblige  him  to  let  pass  all  neutral  war-ships  which 
may  desire  to  enter.  It  is  a  question  of  judgment.  The  pres- 
ence of  a  neutral  war-ship  in  a  blockaded  port  may  not  have 
the  same  consequences  at  all  stages  of  the  blockade,  and  the 
blockading  commander  must  be  left  free  to  judge  whether  he 
can  be  courteous  without  making  any  sacrifice  of  his  military 
interests."^ 

This  question  has  been  at  times  a  seriously  disputed  one. 
During  the  Spanish- American  War  of  1898  it  was  a  source  of 

1  James  Brown  Scott,  "The  Declaration  of  London,"  etc.,  A.  J.  I.  L., 
vol.  VIII,  no.  2,  pp.  276-7. 

^  General  report  accompanying  the  declaration  of  London,  p.  36,  Parlia- 
mentary Papers,  no.  4,  1909. 


BLOCKADE  421 

considerable  irritation  and  friction  at  Manila  by  the  assumption 
on  the  part  of  the  German  naval  forces  of  a  right  to  entry  and 
stay  within  the  blockading  lines  in  Manila  Bay.  One  of  the 
best  opinions  upon  the  matter  which  was  quoted  authoritatively 
at  that  time  is  that  of  Ferguson,  a  Dutch  authority.     He  says: 

"During  the  continuance  of  the  state  of  blockade,  no  vessels 
are  allowed  to  enter  or  leave  the  blockaded  place  without 
special  license  or  consent  of  the  blockading  authority.  Public 
vessels  or  vessels  of  war  of  neutral  powers  are  equally  bound  by 
the  same  obligation  to  respect  the  blockade.  When  the  public 
vessel  of  a  neutral  state  is  allowed  to  have  communication  with 
a  blockaded  place,  the  neutral  commanding  officer  is  obliged 
to  observe  strict  neutrality  and  to  comply  with  the  conditions 
under  which  such  permission  has  been  granted  to  cross  the  lines 
of  the  blockading  belligerent.  The  impartiality  which  must 
be  the  prevailing  feature  of  an  effective  blockade  prohibits, 
except  to  public  vessels,  permission  to  enter  the  blockaded 
place  to  be  given  except  in  extreme  cases  of  positive  necessity. 
Diplomatic  agents  and  consular  oflBcers  of  a  neutral  state  are 
also  allowed  the  amount  of  communication  necessary  for  the 
fulfilment  of  their  oflBcial  duties."^ 

In  case  of  distress,  which  must  be  verified  by  an  oflBcer  of 
the  blockading  force,  a  neutral  vessel  may  enter  a  place  under 
blockade  and  subsequently  leave  it,  provided  that  she  has 
neither  discharged  nor  shipped  any  cargo  there.^  The  accom- 
panying report  to  the  declaration  of  London  says  that  "it  is 
needless  to  say  that  a  blockading  squadron  which  insisted  on 
preventing  a  vessel  in  distress  from  passing  might  do  so  if 
she  (it)  afforded  her  the  help  which  she  needed."' 

i88.  Declaration  and  Notif.cation  of  Blockade. — A  blockade, 
to  be  binding,  must  be  duly  declared  and  notified  in  accordance 
with  the  rules  that  follow.    By  the  declaration  of  a  blockade  is 

1  Ferguson,  1884,  vol.  II,  pp.  486,  487. 

*  Declaration  of  London,  Art.  7,  Appendix  IV. 

•  Parliamentary  Papers,  no.  4,  1909,  p.  38,  Appendix  IV. 


422  BELLIGERENTS  AND  NEUTRALS 

meant  the  official  statement  by  the  competent  authority, 
which  may  be  the  chief  ruler  of  the  blockading  power  or  the 
commander  of  the  squadron,  that  a  blockade  is  or  is  about  to 
be  established  under  certain  specified  conditions.  The  notifi- 
cation is  the  action  on  the  part  of  the  competent  authority  in 
bringing  the  declaration  of  blockade  to  the  knowledge  of  the 
neutral  powers  and  certain  other  authorities.^ 

The  declaration  of  blockade,  whether  made  by  the  power 
concerned  or  by  the  naval  authority  acting  in  its  name,  should 
specify  (1)  the  date  when  the  blockade  begins;  (2)  the  geo- 
graphical limits  of  the  coast-line  under  blockade;  and  (3)  the 
period  within  which  neutral  vessels  may  come  out.  The  period 
just  spoken  of  must  be  allowed  and  be  reasonable  in  duration. 
If  the  operations  of  the  blockading  power,  or  of  the  naval  au- 
thorities acting  in  its  name  do  not  tally  with  the  first  and  second 
specifications,  which,  as  numbered  above,  must  be  inserted  in 
the  declaration  of  blockade,  the  declaration  is  void,  and  a  new 
declaration  is  necessary  in  order  to  make  the  blockade  opera- 
tive.* 

The  notification  of  the  declaration  of  blockade  is  made  (1) 
to  neutral  powers  by  the  blockading  power  by  means  of  a 
communication  addressed  to  the  governments  direct  or  to 
their  representatives  accredited  to  it,  and  (2)  to  the  local  au- 
thorities of  the  blockaded  port  by  the  officer  commanding  the 
blockading  force.  The  local  authorities  will,  in  turn,  inform 
the  foreign  consular  officers  at  the  port  or  on  the  coast-line 
under  blockade  as  soon  as  possible.' 

It  is  the  duty  of  the  neutral  governments  when  duly  advised 
of  the  declaration  of  blockade  to  publish  this  intelligence  es- 
pecially to  their  seaports.  The  notification  to  the  local  authori- 
ties of  the  blockaded  port  places  upon  them  the  obligation  of 
notifying    the    foreign    consular   officials    within   the    district 

*  Declaration  of  London,  Art.  8,  and  accompanying  report,  Appendix 
IV. 

^  Declaration  of  London,  Arts.  9  and  10,  Appendix  IV. 

'  Declaration  of  London,  Art.  11,  and  accompanying  report,  Appendix 
IV. 


BLOCKADE  423 

blockaded.  In  case  of  an  extension  of  the  blockaded  area  or 
of  a  re-establishment  of  a  blockade,  the  rules  as  to  notification 
and  declaration  must  be  again  followed  in  each  instance  as  well 
as  those  of  notification  in  case  of  a  voluntary  raising  of  a  block- 
ade or  any  restriction  in  its  area. 

189.  Liability  to  Capture  for  Breach  of  Blockade. — "The 
liability  of  a  neutral  vessel  to  capture  for  breach  of  blockade 
is  contingent,"  says  Article  14  of  the  declaration  of  London, 
"on  her  knowledge,  actual  or  presumptive,  of  the  blockade." 
"Failing  proof  to  the  contrary,"  the  next  article  goes  on  to 
say,  "knowledge  of  the  blockade  is  presumed  if  the  vessel  left 
a  neutral  port  subsequent  to  the  notification  of  the  blockade 
to  the  power  to  which  such  port  belongs,  provided  that  such 
notification  was  made  in  sufficient  time." 

If  a  vessel  approaching  a  blockaded  port  has  no  knowledge, 
actual  or  presumptive,  of  the  blockade,  the  notification  must 
be  made  to  the  vessel  itself  by  an  officer  of  one  of  the  ships  of 
the  blockading  force.  This  notification  should  be  entered  in 
the  vessel's  log-book  and  must  state  the  day  and  hour  and  the 
geographical  position  of  the  vessel  at  the  time. 

"If  through  the  negligence  of  the  officer  commanding  the 
blockading  force  no  declaration  of  blockade  has  been  notified 
to  the  local  authorities,  or  if  in  the  declaration,  as  notified, 
no  period  has  been  mentioned  within  which  neutral  vessels 
may  come  out,  a  neutral  vessel  coming  out  of  the  blockaded 
port  must  be  allowed  to  pass  free."^ 

If  the  commander  of  the  blockading  forces  has  done  all  in 
his  power  to  make  the  notification  to  the  local  authorities  of 
the  blockaded  port  but  has  failed,  owing  to  the  lack  of  good 
will  and  faith  on  the  part  of  the  local  authorities,  he  cannot  be 
forced  to  let  vessels  out. 

"  Neutral  vessels  may  not  be  captured  for  breach  of  blockade 
except  within  the  area  of  operations  of  the  war-ships  detailed 
to  render  the  blockade  effective."* 

*  Declaration  of  Ijondon,  Art.  16,  Appendix  IV. 

•  Declaration  of  London,  Art.  17,  Appendix  IV. 


424  BELLIGERENTS  AND  NEUTRALS 

In  the  general  report  accompanying  the  declaration  of  Lon- 
don the  following  statement  as  to  the  area  of  operations,  made 
by  Admiral  le  Bris,  the  naval  delegate  from  France  to  the  con- 
ference, met  with  general  approbation.    He  said  that: 

"When  a  government  decides  to  undertake  blockading  op- 
erations against  some  part  of  the  enemy  coast,  it  details  a  cer- 
tain number  of  war-ships  to  take  part  in  the  blockade  and 
intrusts  the  command  to  an  oflScer  whose  duty  is  to  use  them 
for  the  purpose  of  making  the  blockade  effective.  The  com- 
mander of  the  naval  force  thus  formed  posts  the  ships  at  his 
disposal  according  to  the  line  of  the  coast  and  the  geographical 
position  of  the  blockaded  places  and  instructs  each  ship  as  to 
the  part  which  she  has  to  play  and  especially  as  to  the  zone 
which  she  is  to  watch.  All  the  zones  watched  taken  together, 
and  so  organized  as  to  make  the  blockade  effective,  form  the 
area  of  operations  of  the  blockading  force. 

"The  area  of  operations  so  constituted  is  intimately  con- 
nected with  the  effectiveness  of  the  blockade  and  also  with  the 
number  of  ships  employed  on  it. 

"Cases  may  occur  in  which  a  single  ship  will  be  enough  to 
keep  a  blockade  effective — for  instance,  at  the  entrance  of  a 
port  or  at  the  mouth  of  a  river  with  a  small  estuary — so  long 
as  the  circumstances  allow  the  blockading  ship  to  stay  near 
enough  to  the  entrance.  In  that  case  the  area  of  operations 
is  itself  near  the  coast.  But,  on  the  other  hand,  if  circumstances 
force  her  to  remain  far  off,  one  ship  may  not  be  enough  to 
secure  effectiveness,  and  to  maintain  this  she  will  then  have 
to  be  supported  by  others.  From  this  cause  the  area  of  opera- 
tions becomes  wider  and  extends  further  from  the  coast.  It 
may,  therefore,  vary  with  circumstances  and  with  the  number 
of  blockading  ships,  but  it  will  always  be  limited  by  the  condi- 
tion that  effectiveness  must  be  assured."* 

By  the  American  delegation  it  was  declared  that  pursuit 

'  Report  accompanying  declaration  of  London;  see  Appendix  IV,  p. 
550. 


BLOCKADE  425 

was  considered  continuous  and  not  abandoned  in  the  meaning 
of  Article  25  as  they  understood  it,  even  though  it  should  be 
given  up  by  one  line  or  in  one  zone  of  pursuit  of  the  blockading 
force  to  be  resumed  later  by  a  vessel  of  the  next  line  until  the 
final  pursuit  is  abandoned. 

Whatever  may  be  the  final  destination  of  a  vessel  or  her 
cargo,  she  cannot  be  captured  for  a  breach  of  blockade  if,  at 
the  moment,  she  is  on  her  way  to  a  non-blockaded  port.  By 
the  preceding  paragraphs  it  could  be  seen  if  she  were  outside 
of  the  area  of  operations,  even  if  bound  to  a  blockaded  port, 
she  could  not  be  captured.  The  doctrine  of  continuous  voy- 
ages and  the  right  to  capture  cargo  bound  for  a  blockaded  port 
is  thus  given  up  by  this  and  the  preceding  paragraphs  by  the 
United  States,  while,  on  the  other  hand,  "the  view  upheld  by 
certain  powers  that  no  vessel  can  be  seized  for  breach  of  blockade 
until  after  a  special  notification  of  the  existence  of  the  blockade 
has  been  entered  on  her  papers  by  an  officer  of  the  blockading 
squadron,  has  been  also  abandoned  as  no  longer  in  harmony 
with  the  conditions  and  requirements  of  modern  warfare." ^ 

A  vessel  which  has  violated  blockade  outward  or  which 
has  attempted  to  break  blockade  inward  is  liable  to  capture 
so  long  as  she  is  pursued  by  a  ship  of  the  blockading  force.  If 
the  pursuit  is  abandoned,  or  if  the  blockade  is  raised,  her  cap- 
ture can  no  longer  be  effected.  If  a  pursued  vessel  takes 
refuge,  however,  in  a  neutral  port,  the  pursuit  is  suspended 
lut  not  abandoned,  and  it  can  be  resumed  upon  her  departure 
from  that  port.^ 

The  final  article  (No.  21)  of  the  chapter  on  blockade  of  the 
declaration  states  that  "a  vessel  found  guilty  of  breach  of 
blockade  is  liable  to  condemnation.  The  cargo  is  also  con- 
demned unless  it  is  proved  that  at  the  time  of  shipment  of  the 
goods  the  shipper  neither  knew  nor  could  have  known  of  the 

»  Hall,  6th  ed.,  p.  714. 

*  Declaration  of  London,  Art.  20,  and  accompanying  report,  Appendix 


426  BELLIGERENTS  AND  NEUTRALS 

intention  to  break  the  blockade."  The  vessel  is  condemned  in 
all  cases. 

Doctor  James  Brown  Scott,  in  reviewing  this  chapter  on 
blockade  of  the  declaration  of  London,  says: 

"The  provisions  of  the  chapter  dealing  with  blockade  seem 
to  be  reasonable  in  their  terms  and  effects,  fair  to  belligerents 
and  neutrals,  supposing  that  enemy  ports  are  to  be  blockaded 
and  neutrals  prevented  from  trading  with  them  as  in  times  of 
peace,  and  so  clear  and  precise,  except  perhaps  in  the  matter 
of  the  area  of  pursuit  and  capture  of  blockade-runners,  as  to 
make  the  rights  and  duties  alike  of  belligerents  and  neutrals 
certain  and  known  in  advance  of  hostilities.  No  serious  or 
insurmountable  objection  to  their  acceptance  has  been  stated."  ^ 

TOPICS  AND  REFERENCES 

1.  Blockade — Its  Extent  and  Effectiveness — 

Scott's  "Cases  in  International  Law,"  798,  817,  835,  etc.  West- 
lake,  2d  ed.,  vol.  II,  256-268.  "Capture  at  Sea,"  by  Earl 
Loreburn,  1913,  chap.  IV. 

2.  Declaration  and  Notification  of  Blockade — 

Stockton,  "Manual  for  Naval  Officers,"  236-8.  Ferguson,  "Inter- 
national Law,"  1884,  491-2.    Hall,  6th  ed.,  chap.  VIII. 

3.  Liability  to  Capture  for  Breach  of  Blockade — 

Oppenheim,  2d  ed.,  vol.  II,  466-478.  Moore's  "Digest,"  vol.  VII, 
820-839.    Wilson,  chap.  XXV. 

» Scott,  "Declaration  of  London,"  A.  J.  I.  L.,  vol.  VIII,  no.  2,  p.  302. 


CHAPTER  XXVI 
CX)NTRABAND  OF  WAR.    CARRIAGE  OF  CONTRABAND 

190.  Definition  and  General  Principles  of  Contraband. — 
Contraband  of  war  may  be  defined  as  articles  which  are  ca- 
pable of  use  as  an  assistance  to  the  enemy  in  carrying  on  war 
either  on  shore  or  afloat. 

Contraband  trade,  or  the  carriage  of  contraband,  is  a  trade 
with  a  belligerent  with  the  intent  to  supply  him  with  contra- 
band of  war.  The  prohibition  of  this  trade  with  the  attendant 
adjudging  of  the  penalties  is  a  belligerent  right.  This  right 
can  only  be  exercised  upon  the  high  seas  and  the  territorial 
waters  of  the  belligerents  and  in  accordance  with  the  rules  and 
usages  of  international  law. 

In  a  general  way  the  classification  made  by  Grotius  has  been 
followed  to  the  present  time.  His  division  of  articles  of  trade 
or  commerce  was  as  follows: 

"1st.  Those  articles  that  are  useful  solely  for  war  purposes, 
such  as  arms,  warlike  ammunition,  etc. 

"2d.  Those  articles  that  cannot  be  used  for  war  purposes, 
such  as  pictures,  statuary,  etc. 

"3d.  Those  articles  which  can  be  used  for  warlike  or  peace- 
ful purposes,  such  as  money,  provisions,  etc."^ 

So  far  as  they  were  not  bound  by  treaty,  belligerents,  how- 
ever, exercised  their  discretion  in  the  matter  of  declaring  what 
was  and  what  was  not  contraband  until  the  declaration  of 
London  was  formulated,  when  the  leading  maritime  powers  of 
the  world  came  to  an  agreement  which,  on  the  whole,  is  con- 

'  Grotius,  in,  chap.  I,  par.  5. 
427 


428  BELLIGERENTS  AND  NEUTRALS 

sidered  a  satisfactory  advance  as  to  the  whole  subject  of  con- 
traband and  its  carriage.  The  divisions  of  Grotius  are  fol- 
lowed under  the  names  of  absolute  contraband,  conditional 
contraband,  non-contraband,  or  the  free  list. 

"The  notion  of  contraband  of  war,"  says  the  accompanying 
report  to  the  declaration,  "connotes  two  elements:  it  concerns 
objects  of  a  certain  kind  and  with  a  certain  destination.  Can- 
nons, for  instance,  are  carried  in  a  neutral  vessel.  Are  they 
contraband?  That  depends:  if  they  are  destined  for  a  neutral 
government,  no;  if  they  are  destined  for  an  enemy  govern- 
ment, yes.  The  trade  in  certain  articles  is  by  no  means  gen- 
erally forbidden  during  war;  it  is  the  trade  with  the  enemy 
in  these  articles  which  is  illicit  and  against  which  the  belliger- 
ent to  whose  detriment  it  is  carried  on  may  protect  himself  by 
the  measures  allowed  by  international  law."^ 

191.  Enumeration  of  Contraband  and  Non-Contraband 
Articles. — The  declaration  of  London,  In  Article  22,  enumerates 
articles  which  are  absolute  contraband  when  destined  for  an 
enemy  government  and  reads  as  follows: 

"Art.  22.  The  following  articles  may,  without  notice,  be 
treated  as  contraband  of  war,  under  the  name  of  absolute  con- 
traband : 

"(1)  Arms  of  all  kinds,  including  arms  for  sporting  purposes, 
and  their  distinctive  component  parts. 

"(2)  Projectiles,  charges,  and  cartridges  of  all  kinds  and  their 
distinctive  component  parts. 

"  (3)  Powder  and  explosives  specially  prepared  for  use  In  war. 

"  (4)  Gun-mountings,  limber-boxes,  limbers,  military  wagons, 
field  forges,  and  their  distinctive  component  parts. 

"  (5)  Clothing  and  equipment  of  a  distinctively  military  char- 
acter. 

"(6)  All  kinds  of  harness  of  a  distinctively  military  character. 

"(7)  Saddle,  draught,  and  pack  animals  suitable  for  use  in 
war. 

*  Declaration  of  London,  accompanying  report,  Appendix  IV. 


CONTRABAND  OF  WAR  429 

"  (8)  Articles  of  camp  equipment  and  their  distinctive  com- 
ponent parts. 

"(9)  Armor-plates. 

"  (10)  War-ships,  including  boats  and  their  distinctive  com- 
ponent parts  of  such  a  nature  that  they  can  only  be  used  on  a 
vessel  of  war. 

"  (11)  Implements  and  apparatus  designed  exclusively  for  the 
manufacture  of  munitions  of  war,  for  the  manufacture  or  re- 
pair of  arms,  or  war  material  for  use  on  land  or  sea." 

Article  23  provides  for  any  inventions  or  discoveries  which 
may  happen  in  the  future,  but  they  must  be,  as  the  article 
reads,  "exclusively  used  for  war." 

"Art.  23.  Articles  exclusively  used  for  war  may  be  added  to 
the  list  of  absolute  contraband  by  a  declaration,  which  must 
be  notified. 

"  Such  notification  must  be  addressed  to  the  governments  of 
other  powers,  or  to  their  representatives  accredited  to  the  power 
making  the  declaration.  A  notification  made  after  the  out- 
break of  hostilities  is  addressed  only  to  neutral  powers." 

In  Article  24  are  given  articles  known  as  conditional  contra- 
band, depending  largely  upon  their  destination,  as  specified  in 
Article  33. 

"  Art.  24.  The  following  articles,  susceptible  of  use  in  war  as 
well  as  for  purposes  of  peace,  may,  without  notice,  be  treated 
as  contraband  of  war,  under  the  name  of  conditional  contra- 
band: 

"(1)  Foodstuffs. 

"  (2)  Forage  and  grain,  suitable  for  feeding  animals. 

"  (3)  Clothing,  fabrics  for  clothing,  and  boots  and  shoes,  suit- 
able for  use  in  war. 

"  (4)  Gold  and  silver  in  coin  or  bullion;  paper  money. 

"  (5)  Vehicles  of  all  kinds  available  for  use  in  war  and  their 
component  parts- 

"(6)  Vessels,  craft,  and  boats  of  all  kinds;  floating  docks, 
parts  of  docks,  and  their  component  parts. 


430  BELLIGERENTS  AND  NEUTRALS 

"  (7)  Railway  material,  both  fixed  and  rolling  stock,  and  ma- 
terial for  telegraphs,  wireless  telegraphs,  and  telephones. 

"  (8)  Balloons  and  flying-machines  and  their  distinctive  com- 
ponent parts,  together  with  accessories  and  articles  recognizable 
as  intended  for  use  in  connection  with  balloons  and  flying- 
machines. 

"(9)  Fuel;  lubricants. 

"  (10)  Powder  and  explosives  not  specially  prepared  for  use 
in  war. 

"  (11)  Barbed  wire  and  implements  for  fixing  and  cutting  the 
same. 

"(12)  Horseshoes  and  shoeing  materials. 

"  (13)  Harness  and  saddlery. 

"  (14)  Field  glasses,  telescopes,  chronometers,  and  all  kinds  of 
nautical  instruments." 

"Foodstuffs  include  products  necessary  or  useful  for  the 
alimentation  of  man,  whether  solid  or  liquid. 

"Paper  money  only  includes  inconvertible  paper  money, 
i.  e.,  bank-notes  which  may  or  may  not  be  legal  tender.  Bills 
of  exchange  and  checks  are  excluded. 

"  Engines  and  boilers  are  included  in  the  sixth  enumeration. 

"Railway  material  includes  fixtures  (such  as  rails,  sleepers, 
turntables,  parts  of  bridges)  and  rolling  stock  (such  as  locomo- 
tives, carriages,  and  trucks)."^ 

Article  25  follows  the  ruling  of  Article  23. 

"Art.  25.  Articles  susceptible  of  use  in  war  as  well  as  for 
purposes  of  peace,  other  than  those  enumerated  in  Articles  22 
and  24,  may  be  added  to  the  list  of  conditional  contraband  by 
a  declaration,  which  must  be  notified  in  the  manner  provided 
for  in  the  second  paragraph  of  Article  23." 

Article  26  explains  itself: 

"Art.  26.  If  a  power  waives,  so  far  as  it  is  concerned,  the 
right  to  treat  as  contraband  of  war  an  article  comprised  in  any 
of  the  classes  enumerated  in  Articles  22  and  24,  such  inten- 
*  Declaration  of  London,  accompanying  report,  Appendix  IV. 


CONTRABAND  OF  WAR  431 

tion  shall  be  announced  by  a  declaration,  which  must  be  noti- 
fied in  the  manner  provided  for  in  the  second  paragraph  of 
Article  23." 

Article  27  gives  the  non-contraband  or  free  list: 

"Art.  27.  Articles  which  are  not  susceptible  of  use  in  war 
may  not  be  declared  contraband  of  war." 

This  free  list  reads  as  follows: 

*Art.  28.  The  following  may  not  be  declared  contraband  of 
war: 

"(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other  raw 
materials  of  the  textile  industries  and  yarns  of  the  same. 

"(2)  Oil-seeds  and  nuts;  copra. 

"(3)  Rubber,  resins,  gums,  and  lacs;  hops. 

"(4)  Rawhides  and  horns,  bones,  and  ivory. 

"(5)  Natural  and  artificial  manures,  including  nitrates  and 
phosphates  for  agricultural  purposes. 

"(6)  Metallic  ores. 

"(7)  Earths,  clays,  lime,  chalk;  stone,  including  marble, 
bricks,  slates,  and  tiles. 

"  (8)  Chinaware  and  glass. 

"  (9)  Paper  and  paper-making  materials. 

"(10)  Soap,  paint,  and  colors,  including  articles  exclusively 
used  in  their  manufacture,  and  varnish. 

"(11)  Bleach ing-powder,  soda-ash,  caustic  soda,  salt-cake, 
ammonia,  sulphate  of  ammonia,  and  sulphate  of  copper. 

"(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

"(13)  Precious  and  semiprecious  stones,  pearls,  mother-of- 
pearl,  and  coral. 

"  (14)  Clocks  and  watches,  other  than  chronometers. 

"(15)  Fashion  and  fancy  goods. 

"  (16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

"(17)  Articles  of  household  furniture  and  decoration;  office 
furniture  and  requisites." 

Great  Britain  has  announced  that  the  following  articles  on 
the  free  list  (Article  28)  shall  be  considered  as  conditional  con- 


432  BELLIGERENTS  AND  NEUTRALS 

traband:  Copper,  unwrought;  lead,  pig,  sheet,  or  pipe;  glyc- 
erine; ferrochrome;  haematite  iron  ore;  magnetic  iron  ore; 
rubber;  hides  and  skins,  raw  or  rough  tanned  (but  not  in- 
cluding dressed  leather). 

Of  this  Article  28  the  accompanying  report  states  that: 

"To  lessen  the  drawbacks  of  war  as  regards  neutral  trade  it 
has  been  thought  useful  to  draw  up  this  so-called  free  list,  but 
this  does  not  mean,  as  has  been  explained  above,  that  all  articles 
outside  it  might  be  declared  contraband  of  war. 

"The  ores  here  referred  to  are  the  product  of  mines  from 
which  metals  are  derived.  .  .  . 

"No.  16  refers  to  the  hair  of  certain  animals,  such  as  pigs 
and  wild  boars. 

"Carpets  and  mats  come  under  household  furniture."^ 

The  American  delegation  in  their  report  say  of  this  list  that 
it  is  of  great  benefit  to  the  sea-borne  foreign  trade  of  all  coun- 
tries and  especially  to  that  of  the  United  States,  whose  exports 
and  imports  would  be  greatly  affected  by  any  uncertainty  re- 
garding cotton,  wool,  silk,  jute,  rubber,  hides,  etc. 

"  Art.  29.  Likewise  the  following  may  not  be  treated  as  con- 
traband of  war: 

"  (1)  Articles  serving  exclusively  to  aid  the  sick  and  wounded. 
They  can,  however,  in  case  of  urgent  military  necessity  and 
subject  to  the  payment  of  compensation,  be  requisitioned,  if 
their  destination  is  that  specified  in  Article  30. 

"  (2)  Articles  intended  for  the  use  of  the  vessel  in  which  they 
are  found,  as  well  as  those  intended  for  the  use  of  her  crew  and 
passengers  during  the  voyage." 

The  articles  enumerated  in  Article  29  are  for  the  special 
reasons  given  excluded  from  treatment  as  contraband.  Hos- 
pital ships  are  not  referred  to  in  this  article.  The  word 
crew  here  includes  all  persons  in  the  service  of  the  vessel  in 
general.* 

^  Declaration  of  London,  accompanying  report,  Appendix  IV. 
*  Declaration  of  London,  accompanying  report,  Appendix  IV. 


CONTRABAND  OF  WAR  433 

T92.  Destination  of  Contraband  and  Consequent  Judgment. 
■ — As  to  the  destination  of  absolute  contraband  the  declaration 
of  London  says  in 

"Art.  30.  Absolute  contraband  is  liable  to  capture  if  it  is 
shown  to  be  destined  to  territory  belonging  to  or  occupied  by 
the  enemy  or  to  the  armed  forces  of  the  enemy.  It  is  immaterial 
whether  the  carriage  of  the  goods  is  direct  or  entails  transship- 
ment or  a  subsequent  transport  by  land." 

It  makes  no  difference  in  the  cases  coming  under  this  article 
what  the  destination  of  the  vessel  may  be,  as  the  destination 
of  the  goods  is  the  determining  factor.  This  article  establishes 
the  principle  of  continuous  voyages  so  far  as  absolute  contra- 
band is  concerned.  By  continuous  voyage  is  meant  in  this 
case  that  the  progress  of  these  goods  to  a  final  belligerent  desti- 
nation makes  their  voyage  continuous,  even  if  a  transshipment 
occurs  at  a  neutral  port.  The  final  and  ultimate  destination 
makes  the  trade  in  which  absolutely  contraband  goods  are  car- 
ried a  contraband  trade  and  subjects  them  to  capture  and 
condemnation.  It  makes  no  difference  whether  the  destina- 
tion is  territory  belonging  to  or  occupied  by  the  enemy  or  for 
his  armed  military  or  naval  forces,  the  penalty  is  the  same.^ 

"Art.  31.  Proof  of  the  destination  specified  in  Article  30  is 
complete  in  the  following  cases: 

"(1)  When  the  goods  are  documented  for  discharge  in  an 
enemy  port  or  for  delivery  to  the  armed  forces  of  the  enemy. 

"  (2)  When  the  vessel  is  to  call  at  enemy  ports  only,  or  when 
she  is  to  touch  at  an  enemy  port  or  meet  the  armed  forces  of 
the  enemy  before  reaching  the  neutral  port  for  which  the  goods 
in  question  are  documented. 

"Art.  32.  Where  a  vessel  is  carrying  absolute  contraband, 
her  papers  are  conclusive  proof  as  to  the  voyage  on  which  she 
is  engaged,  unless  she  is  found  clearly  out  of  the  course  indi- 
cated by  her  papers  and  unable  to  give  adequate  reasons  to 
justify  such  deviation." 

These  articles  treat  of  the  necessary  proof  as  to  the  destina- 
1  Declaration  of  London,  accompanying  report,  Appendix  IV. 


434  BELLIGERENTS  AND  NEUTRALS 

tion,  which  Is  more  fully  discussed  in  the  report  accompanying 
the  declaration,  which  can  be  found  in  full  in  Appendix  IV  of 
this  book. 

"Art.  33.  Conditional  contraband  is  liable  to  capture  if  it 
is  shown  to  be  destined  for  the  use  of  the  armed  forces  or  of  a 
government  department  of  the  enemy  state,  unless  in  this  latter 
case  the  circumstances  show  that  the  goods  can  not  in  fact  be 
used  for  the  purposes  of  the  war  in  progress.  This  latter  ex- 
ception does  not  apply  to  a  consignment  coming  under  Article 
24  (4)." 

The  above  article  treats  of  the  destination  of  conditional 
contraband,  which  differs  from  the  rules  of  absolute  contraband 
in  two  respects:  (1)  there  is  no  question  of  destination  for  the 
enemy  in  general  but  of  destination  for  the  use  of  his  armed 
forces  or  government  departments,  and  (2)  the  doctrine  of  con- 
tinuous voyage  is  excluded. 

The  articles  of  conditional  contraband  carried  by  neutral 
carriers  are  often  bulky  and  are  not  always  distinguishable 
as  to  final  destination,  and  they  would  also  be  diflScult  to  take 
from  a  vessel  at  sea  which  is  not  liable  to  capture. 

"Art.  34.  The  destination  referred  to  in  Article  33  is  pre- 
sumed to  exist  if  the  goods  are  consigned  to  enemy  authorities 
or  to  a  contractor  established  in  the  enemy  country  who,  as  a 
matter  of  common  knowledge,  supplies  articles  of  this  kind  to 
the  enemy.  A  similar  presumption  arises  if  the  goods  are  con- 
signed to  a  fortified  place  belonging  to  the  enemy  or  other  place 
serving  as  a  base  for  the  armed  forces  of  the  enemy.  No  such 
presumption,  however,  arises  in  the  case  of  a  merchant  vessel 
bound  for  one  of  these  places  if  it  is  sought  to  prove  that  she 
herself  is  contraband." 

The  word  commergant  in  the  French  original  is  here  trans- 
lated contractor.  It  is  referred  to  as  "a  trader  established  in 
an  enemy  country  who,  as  a  matter  of  common  knowledge, 
supplies  the  enemy  government  with  articles  of  the  kind  in 
question." 


CONTRABAND  OF  WAR  435 

This  article  has  been  the  subject  of  much  discussion  in  En- 
gland and  has  been  one  of  the  great  causes  of  the  opposition  to 
the  ratification  of  the  declaration  by  that  country.  By  the 
French  text  of  the  declaration  it  was  claimed  by  its  opponents 
that  the  word  commergant  applied  to  any  merchant  and  not 
to  a  government  contractor  as  defined  in  the  accompanying 
report.  In  addition,  as  the  article  reads  that  an  enemy  destina- 
tion is  presumed  "  if  the  goods  are  consigned  to  a  fortified  place 
belonging  to  the  enemy,"  and  as  most  of  the  British  seaports 
are  fortified  it  was  held  by  the  English  critics  of  the  declaration 
that  foodstuffs  for  the  use  of  non-combatants  would  be  pre- 
vented from  reaching  by  this  expression  innocent  destinations. 
It  certainly  was  not  the  intention  of  the  conference,  as  under- 
stood by  the  writer,  a  delegate  from  the  United  States,  that 
these  interpretations  of  the  text  were  correct.  The  enemy's 
forces  alone  were  contemplated  as  the  destination.  The  ac- 
companying report  with  its  explanations  as  adopted  also  were 
considered  by  the  writer  an  authoritative  exposition  of  the 
declaration. 

A  further  discussion  as  to  the  presumptions  referred  to  in 
the  article  will  be  found  in  the  accompanying  report,  in  Appen- 
dix IV. 

Articles  35  and  36  read  as  follows: 

"Art.  35.  Conditional  contraband  is  not  liable  to  capture, 
except  when  found  on  board  a  vessel  bound  for  territory  be- 
longing to  or  occupied  by  the  enemy  or  for  the  armed  forces 
of  the  enemy,  and  when  it  is  not  to  be  discharged  in  an  inter- 
vening neutral  port. 

"The  ship's  papers  are  conclusive  proof  both  as  to  the  voyage 
on  which  the  vessel  is  engaged  and  as  to  the  port  of  discharge 
of  the  goods,  unless  she  is  found  clearly  out  of  the  course  indi- 
cated by  her  papers  and  unable  to  give  adequate  reasons  to 
justify  such  deviation. 

"  Art.  36.  Notwithstanding  the  provisions  of  Article  35,  con- 
ditional contraband,  if  shown  to  have  the  destination  referred 


436  BELLIGERENTS  AND  NEUTRALS 

to  in  Article  33,  is  liable  to  capture  in  cases  where  the  enemy 
country  has  no  seaboard." 

Article  35  emphasizes  the  exclusion  as  a  rule  of  the  doctrine 
of  continuous  voyages  from  additional  contraband.  The  pivot 
of  contraband  trade  rests  upon  the  ship's  papers  unless  they 
are  manifestly  false.  Article  36  gives,  however,  an  exception  in 
favor  of  the  doctrine  of  continuous  voyages  when  the  only  port 
of  supply  of  an  enemy  country  is  a  neutral  port.  This  was  the 
case  of  the  Boer  country  and  would  be  the  case  of  Bolivia  and 
Servia. 

The  extent  of  the  liability  of  a  contraband  carrier  is  shown 
in  Article  37. 

"  Art.  37.  A  vessel  carrying  goods  liable  to  capture  as  abso- 
lute or  conditional  contraband  may  be  captured  on  the  high 
seas  or  in  the  territorial  waters  of  the  belligerents  throughout 
the  whole  of  her  voyage,  even  if  she  is  to  touch  at  a  port  of 
call  before  reaching  the  hostile  destination." 

The  limitation,  so  far  as  the  taint  is  concerned,  will  be 
found  in  the  next  article. 

"  Art.  38.  A  vessel  may  not  be  captured  on  the  ground  that 
she  has  carried  contraband  on  a  previous  occasion  if  such  car- 
riage is  in  point  of  fact  at  an  end." 

193.  The  Penalty  of  Contraband  Trade. — As  a  penalty  for 
the  carriage  of  contraband,  the  goods  that  are  contraband  are 
liable  to  condemnation.  This  statement,  which  is  found  in 
Article  39  of  the  declaration,  is  in  accordance  with  accepted 
usage. 

"It  was  universally  admitted  that  in  certain  cases  the  con- 
demnation of  the  contraband  is  not  enough  and  that  the  ves- 
sel herself  should  also  be  condemned,  but  opinions  differed  as 
to  what  these  cases  were.  It  was  decided  that  the  contraband 
must  bear  a  certain  proportion  to  the  total  cargo.  But  the 
question  divides  itself  into  two  parts:  (1)  What  shall  be 
the  proportion?  The  solution  adopted  is  the  mean  between 
those  proposed,  which  varied  from  a  quarter  to  three  quarters. 


CONTRABAND  OF  WAR  437 

(2)  How  shall  this  proportion  be  reckoned?  ...  If  the  standard 
of  volume  or  weight  is  adopted,  the  master  will  ship  innocent 
goods  occupying  space  or  of  weight  sufficient  to  exceed  the 
contraband.  A  similar  remark  may  be  made  as  regards  the 
standard  of  value  or  freight.  The  consequence  is  that,  in  order 
to  justify  condemnation,  it  is  enough  that  the  contraband 
should  form  more  than  half  the  cargo  by  any  one  of  the  above 
standards."^ 

In  the  report  of  the  American  delegation  to  the  secretary  of 
state  it  is  stated  in  regard  to  this  penalty  that  "much  relief  is 
afforded  to  neutrals  in  respect  to  the  penalty  of  carrying  con- 
traband. In  the  first  place,  the  ship  is  not  subject  to  confisca- 
tion unless  more  than  half  of  the  cargo  is  contraband,  to  be 
determined  either  by  weight,  volume,  value,  or  freight  value." 

"Art.  41.  If  a  vessel  carrying  contraband  is  released  she 
may  be  condemned  to  pay  the  costs  and  expenses  incurred  by 
the  captor  in  respect  of  the  proceedings  in  the  national  prize- 
court  and  the  custody  of  the  ship  and  cargo  during  the  pro- 
ceedings." 

It  was  considered  that  some  deterrent  should  be  prescribed 
for  the  carriage  of  contraband  when  it  was  not  sufficient  to 
condemn  the  vessel.  The  article  just  given  accomplishes  this 
purpose,  which  may  be  very  serious  as  a  penalty. 

"  Art.  42.  Goods  which  belong  to  the  owner  of  the  contra- 
band and  are  on  board  the  same  vessel  are  liable  to  condemna- 
tion." 

This  is  in  accordance  with  usage  and  involves  an  additional 
punishment  to  the  bearer  of  the  contraband  articles,  who  is 
the  principal  offender. 

"Art.  43.  If  a  vessel  is  encountered  at  sea  while  unaware  of 
the  outbreak  of  hostilities  or  of  the  declaration  of  contraband 
which  applies  to  her  cargo,  the  contraband  can  not  be  condemned 
except  on  payment  of  compensation;  the  vessel  herself  and  the 
remainder  of  the  cargo  are  not  liable  to  condemnation  or  to 
•  See  accompanying  report,  Appendix  IV. 


438  BELLIGERENTS  AND  NEUTRALS 

the  costs  and  expenses  referred  to  in  Article  41.  The  same  rule 
applies  if  the  master,  after  becoming  aware  of  the  outbreak  of 
hostiUties  or  of  the  declaration  of  contraband,  has  had  no 
opportunity  of  discharging  the  contraband. 

"  A  vessel  is  deemed  to  be  aware  of  the  existence  of  a  state  of 
war  or  of  a  declaration  of  contraband  if  she  left  a  neutral  port 
subsequently  to  the  notification  to  the  power  to  which  such 
port  belongs  of  the  outbreak  of  hostilities  or  of  the  declaration 
of  contraband,  provided  such  notification  was  made  in  suffi- 
cient time.  A  vessel  is  also  deemed  to  be  aware  of  the  existence 
of  a  state  of  war  if  she  left  an  enemy  port  after  the  outbreak  of 
hostilities." 

This  gives  an  exception  arising  from  the  want  of  knowledge 
of  hostilities  which  is  more  or  less  common  in  all  similar  cases 
involving  neutrals. 

"Art.  44.  A  vessel  which  has  been  stopped  on  the  ground 
that  she  is  carrying  contraband,  and  which  is  not  liable  to  con- 
demnation on  account  of  the  proportion  of  contraband  on 
board,  may,  when  the  circumstances  permit,  be  allowed  to 
continue  her  voyage  if  the  master  is  willing  to  hand  over  the 
contraband  to  the  belligerent  war-ship. 

"The  delivery  of  the  contraband  must  be  entered  by  the 
captor  on  the  log-book  of  the  vessel  stopped,  and  the  master 
must  give  the  captor  duly  certified  copies  of  all  relevant 
papers. 

"  The  captor  is  at  liberty  to  destroy  the  contraband  that  has 
been  handed  over  to  him  under  these  conditions." 

Of  this  article  the  report  of  the  American  delegates  says: 

"A  rule  was  adopted  that  a  ship  seized  for  carrying  contra- 
band, although  not  itself  liable  to  confiscation  because  the 
proportion  of  contraband  was  below  one  half,  could  be  author- 
ized to  proceed  according  to  circumstances  if  the  captain  was 
ready  to  deliver  the  contraband  articles  to  the  belligerent  man- 
of-war.  The  captor  in  such  a  case  has  the  option  of  destroying 
the  contraband  which  is  thus  delivered  to  him.    This  procedure 


CONTRABAND  OF  WAR  439 

is  one  of  value,  as  it  saves  from  capture  and  detention  a  neutral 
liner  filled  with  passengers,  mails,  and  valuable  freight,  which 
might  have  a  small  amount  of  contraband  known  or  unknown 
to  its  captain  and  owner.  This  procedure  is  also  in  conformity 
with  many  treaties  made  by  the  United  States,  dating  from 
1783  to  1864.  It  avoids  vexatious  seizure  of  neutral  vessels — 
bad  enough  in  the  times  of  small  vessels,  but  intolerable  with 
the  great  liners  of  to-day."^ 

There  must  be  a  trial  and  judgment  of  a  prize-court  of  the 
captor  having  proper  jurisdiction  in  regard  to  the  goods  in- 
volved whether  destroyed  or  not. 

This  article  finishes  the  chapter  on  contraband  of  the  declara- 
tion of  London  and  it  may  be  considered  in  connection  with 
the  accompanying  exposition  a  satisfactory  treatment  of  the 
question.  It  may  be  said  here  that  the  accompanying  report 
which  was  adopted  with  little  amendment  by  the  naval  confer- 
ence was  prepared  by  the  learned  first  delegate  from  France — 
M.  Renault,  and  is  worthy  of  its  very  distinguished  author, 
who  was  on  this  occasion  the  oflBcial  reporter  of  the  draughting 
committee. 

In  closing  this  subject  it  must  be  borne  in  mind  that  the 
manufacture  and  trade  of  contraband  is  not  illegal  so  far  as 
neutrals  are  concerned,  unless  it  takes  the  form  of  an  accom- 
paniment of  a  military  or  hostile  expedition  from  a  neutral 
port.  The  neutral  may  and  often  does  warn  his  nationals  of 
the  penalty  and  results  of  such  trade,  but  all  such  trade  on  the 
part  of  neutral  citizens  or  subjects  is  at  their  own  risk  and  can- 
not receive  the  protection  of  their  state. 

"In  fact,"  as  Richard  Henry  Dana  says,  "the  right  of  the 
belligerent  to  prevent  certain  things  getting  into  the  military 
use  of  his  enemy  is  the  foundation  of  the  law  of  contraband, 
and  its  limits  are,  as  in  most  other  cases,  the  practical  results 
of  the  conflict  between  this  belligerent  right  on  the  one  hand 

'  Report  of  American  delegation  on  contraband  of  war,  London  naval 
conference,  Appendix  IV. 


440  BELLIGERENTS  AND  NEUTRALS 

and  the  right  of  the  neutral  to  trade  with  the  enemy  on  the 
other."! 

194.  Pre-emption. — The  question  of  pre-emption  is  not 
dealt  with  by  the  declaration  of  London.  By  pre-emption  we 
mean  the  forcible  purchase  of  contraband  articles  by  paying  a 
price  which  is  generally  arrived  at  by  taking  the  original  cost  of 
the  goods,  to  which  are  added  the  expenses  including  the  freight 
and  a  reasonable  profit,  reckoned  as  at  least  ten  per  cent.  The 
British  Admiralty  Manual  of  1888  (No.  84)  reads  that  "the 
carriage  of  goods  conditionally  contraband  and  of  such  abso- 
lutely contraband  goods  as  are  in  an  unmanufactured  state 
and  are  the  produce  of  the  country  exporting  them  is  usually 
followed  only  by  the  pre-emption  of  such  goods  by  the  British 
Government,  which  then  pays  freight  to  the  vessel  carrying 
the  goods." 

Pre-emption  remains  a  possible  operation  in  dealing  with 
contraband  and  is,  of  course,  a  mitigation  of  the  right  of  con- 
demnation. 

Hershey  says:  "In  1890  the  Institute  of  International  Law 
recognized  the  right  of  pre-emption  in  the  case  of  articles 
ancipitis  usus. 

"Since  pre-emption  is  a  mitigation  of  the  rule  preventing 
confiscation  as  the  penalty  for  the  carriage  of  contraband,  it 
is,  of  course,  always  open  to  belligerents  to  resort  to  in  all  cases 
when  the  goods  are  undoubtedly  contraband."^ 

A  process  of  pre-emption  is  allowed  in  the  treaty  between 
the  United  States  and  Prussia,  which  is  regarded  as  still  opera- 
tive.' 

»  Dana's  "Wheaton,"  8th  ed.,  note,  226. 

*  Hershey,  "  Essentials,"  footnote,  p.  504. 

» Treaty  of  U.  S.  and  Prussia,  1799,  Art.  XIII. 


CONTRABAND  OF  WAR  441 


TOPICS  AND  REFERENCES 

1.  Definition  and  General  Principles  of  Contraband — 

Ferguson,  vol.  II,  462.  G.  B.  Davis,  3d  ed.,  chap.  XIII.  Oppen- 
heim,  2d  ed.,  vol.  II,  480-1. 

2.  Enumeration  of  Contraband  and  Non-Contraband  Articles — 

"Declaration  of  London,"  chap.  II,  see  Appendix  IV.  Westlake, 
2d  ed.,  vol.  II,  277-287.     Hall,  6th  ed.,  651-663. 

3.  Destination  of  Contraband  and  Consequent  Judgments — 

Naval  War  College,  "International  Law  Topics,"  1907,  115-122, 
127-135.  Earl  Loreburn,  "Capture  at  Sea,"  chap.  V.  Moore's 
"Digest,"  vol.  VII,  695-7,  and  as  to  continuous  voyages,  698- 
744. 

4.  The  Penalty  of  Contraband  Trade— 

Fenwick's  "Neutrality  Laws,"  104-7,  158-9.  Oppenheim,  2d  ed., 
vol.  II,  506-514.  T.  J.  Lawrence,  "Principles  of  International 
Law,"  4th  ed.,  pars.  253-9. 

5.  Pre-emption  of  Contraband  Goods — 

Hall,  6th  ed.,  663-4,  note.  Twiss,  sec.  146.  Woolsey,  6th  ed., 
sec.  197. 


CHAPTER  XXVII 
UNNEUTRAL  SERVICE 

195.  The  Carriage  of  Persons  and  Despatches  for  the 
Enemy. — Again  we  find  in  the  declaration  of  London  the  latest 
and  best  accepted  treatment  of  the  subject  of  unneutral  ser- 
vice, which  has  been  also  called  "hostile  assistance,"  and  the 
"analogues  of  contraband."  Although  the  London  naval  con- 
ference adopted  the  term  Vassistance  hostile  in  French  to 
cover  the  subject,  the  best  translation  and  expression  in  English 
seems  to  be  unneutral  service,  which  may  be  said  to  finally 
give  the  term  which  is  to  be  used  in  English.  There  is  a 
seeming  similarity  between  the  service  known  as  the  carriage 
of  contraband  and  that  of  unneutral  service.  The  essential 
difference,  however,  is  that  the  carriage  of  contraband  refers 
to  the  trade  in  contraband  articles  or  merchandise  while  un- 
neutral service  means  the  carriage  of  persons,  by  vessels,  who 
are  in  service  of  the  enemy  or  who  by  means  of  the  vessel  in 
which  they  are  transported  perform  service  lacking  neutral 
character  in  the  prosecution  of  the  war.  This  service  may  not 
be  directly  hostile  in  its  nature. 

We  will  first  discuss  the  subject  of  the  carriage  of  persons 
for  the  enemy.  In  the  action  of  the  London  naval  con- 
ference unneutral  service  engaged  in  by  neutral  vessels  has  been 
divided  in  iVrticle  45  of  the  declaration  of  London  into  two 
classes  according  to  the  gravity  of  the  act  of  which  the  neutral 
vessel  is  accused. 

In  the  first  case,  a  neutral  vessel  will  be  condemned  and  in 

a  general  way  receive  the  same  treatment  as  a  neutral  vessel 

liable  to  the  penalty  accompanying  the  carriage  of  contraband, 

but  the  flag  covers  the  goods  that  are  carried  on  board. 

442 


UNNEUTRAL  SERVICE  443 

In  the  second  case,  not  only  is  a  vessel  liable  to  condemnation 
but  it  is  considered  and  treated  as  an  enemy  merchant  vessel 
if  there  is  no  doubt  as  to  its  guilt,  as  the  acts  of  unneutral  ser- 
vice performed  are  of  greater  gravity  and  of  more  direct  and 
valuable  service  to  the  enemy.  Hence  the  goods  on  board 
will  be  presumed  to  be  enemy  goods,  and  the  vessel  will  be 
subject  to  destruction  under  the  same  conditions  as  an  enemy 
merchant  vessel.  Article  45  of  the  declaration  of  London  reads 
as  follows: 

"  Art.  45.  A  neutral  vessel  will  be  condemned  and  will,  in  a 
general  way,  receive  the  same  treatment  as  a  neutral  vessel 
liable  to  condemnation  for  carriage  of  contraband — 

"  (1)  If  she  is  on  a  voyage  specially  undertaken  with  a  view 
to  the  transport  of  individual  passengers  who  are  embodied 
in  the  armed  forces  of  the  enemy  or  with  a  view  to  the  trans- 
mission of  intelligence  in  the  interest  of  the  enemy. 

"  (2)  If,  to  the  knowledge  of  either  the  owner,  the  charterer, 
or  the  master,  she  is  transporting  a  military  detachment  of 
the  enemy  or  one  or  more  persons  who,  in  the  course  of  the 
voyage,  directly  assist  the  operations  of  the  enemy. 

"  In  the  cases  specified  under  the  above  heads,  goods  belong- 
ing to  the  owner  of  the  vessel  are  likewise  liable  to  condemna- 
tion. 

"The  provisions  of  the  present  article  do  not  apply  if  the 
vessel  is  encountered  at  sea  while  unaware  of  the  outbreak  of 
hostilities  or  if  the  master,  after  becoming  aware  of  the  out- 
break of  hostilities,  has  had  no  opportunity  of  disembarking 
the  passengers.  The  vessel  is  deemed  to  be  aware  of  the  exis- 
tence of  a  state  of  war  if  she  left  an  enemy  port  subsequently 
to  the  outbreak  of  hostilities  or  a  neutral  port  subsequently  to 
the  notification  of  the  outbreak  of  hostilities  to  the  power 
to  which  such  port  belongs,  provided  that  such  notification 
was  made  in  sufficient  time." 

The  first  class  supposes  passengers  travelling  as  individuals 
but  with  a  voyage  specially  undertaken  for  the  purpose  of  aid- 


444  BELLIGERENTS  AND  NEUTRALS 

ing  the  belligerent.  It  cannot  be  called  a  hostile  or  military- 
expedition  under  the  neutrality  laws  of  the  United  States,  for 
instance,  because  it  lacks  the  organization  of  one  and  is  un- 
armed and  not  bound  to  operate  against  a  state  hostile  to  the 
individuals  on  board.  It  is,  however,  transport  service  for  the 
benefit  of  a  belligerent. 

Whether  it  would  be  considered  a  lawful  prize  by  a  hostile 
belligerent,  if  the  passengers  were  exclusively  reservists  and 
the  vessel  chartered  by  an  agent  of  the  belligerent  government, 
carrying  the  men  for  embodiment  in  the  army  of  that  country 
is  probable.  The  interpretation  of  the  accompanying  letter 
to  the  declaration  of  London  might  lead  us  to  hold  the  nega- 
tive, though  that  letter  apparently  considers  the  matter  from 
the  point  of  a  regular  steamer  carrying  other  passengers  than 
reservists  and  bound  for  its  usual  destination. 

The  transmission  of  intelligence  in  the  interest  of  the  enemy 
on  a  voyage  specially  undertaken  for  the  purpose  would  be 
treated  in  the  same  way  as  the  carriage  of  passengers  embodied 
in  his  armed  force,  says  the  accompanying  report.  (See  Ap- 
pendix IV.) 

In  commenting  upon  this  Oppenheim  says: 

"The  declaration  of  London  does  not  mention  the  case  of 
enemy  despatches  embodying  intelligence  found  on  board 
such  a  neutral  vessel  as  may  not  herself  be  captured  for  such 
carriage.  For  instance :  in  the  case  of  a  mail-steamer  pursuing 
her  ordinary  course  and  carrying  a  despatch  of  the  enemy  not 
in  her  mail-bags  but  separately,  the  vessel  may  not,  according 
to  Article  45,  be  seized.  In  this  and  similar  cases  may  des- 
patches be  seized  without  the  seizure  of  the  vessel?  It  has 
been  pointed  out  above  that  in  a  case  of  necessity,  self-preser- 
vation would  justify  a  belligerent  in  temporarily  detaining  such 
a  liner  for  the  purpose  of  preventing  the  intelligence  from  reach- 
ing the  enemy.  This  certainly  fits  the  case  of  a  vessel  trans- 
mitting oral  intelligence.  But  if  a  vessel  carried  despatches, 
the  necessity  of  detaining  her  ceases  through  the  seizure  of  the 


UNNEUTRAL  SERVICE  445 

despatches  themselves.  The  question  as  to  whether,  in  such 
cases,  the  despatches  may  be  seized  without  seizure  of  the  vessel 
ought,  therefore,  in  analogy  with  Article  47  of  the  declaration 
of  London,  to  be  answered  in  the  affirmative."^ 

If  the  vessel  has,  as  it  is  supposed  in  the  two  cases  of  Article 
45,  performed  but  a  single  service,  no  taint  remains  and  she  is 
not  liable  to  capture  after  the  completion  of  her  single  voyage. 
In  case,  from  a  want  of  knowledge,  the  capture  of  the  vessel 
would  not  be  valid,  the  persons  on  board  who  belong  to  the 
armed  forces  of  the  enemy  may,  nevertheless,  be  made  prison- 
ers of  war  by  the  belligerent.  If  the  vessels  in  these  cases  are 
condemned  for  unneutral  services,  the  goods  belonging  to  the 
owner  are  also  liable  to  condemnation.^ 

"Art.  46.  A  neutral  vessel  is  liable  to  condemnation  and,  in 
a  general  way,  to  the  same  treatment  as  would  be  applicable 
to  her  if  she  were  an  enemy  merchant  vessel — 

"  (1)  If  she  takes  a  direct  part  in  the  hostilities. 

"  (2)  If  she  is  under  the  orders  or  control  of  an  agent  placed 
on  board  by  the  enemy  government. 

"  (3)  If  she  is  in  the  exclusive  employment  of  the  enemy  gov- 
ernment. 

"(4)  If  she  is  exclusively  engaged  at  the  time  either  in  the 
transport  of  enemy  troops  or  in  the  transmission  of  intelligence 
in  the  interest  of  the  enemy. 

"  In  the  cases  covered  by  the  present  article,  goods  belonging 
to  the  owner  of  the  vessel  are  likewise  liable  to  condemnation." 

"The  cases  here  contemplated  are  more  serious  than  those 
in  Article  45  and  justify  a  severer  treatment  of  the  vessel. 

"First  case.  The  vessel  takes  a  direct  part  in  the  hostil- 
ities. This  may  take  difTerent  forms.  It  is  needless  to  say 
that  in  an  armed  conflict,  the  vessel  takes  all  the  risks  incident 
thereto.  .  .  .' 

>  Oppenheim,  2d  ed.,  vol.  II,  pp.  .'531,  532. 

*  See  accompanying  letter  to  declaration  of  London,  Appendix  IV. 

•  See  case  of  Kowshing,  Stockton,  "Manual,"  etc.,  pp.  261-3. 


446  BELLIGERENTS  AND  NEUTRALS 

"Second  case.  The  vessel  is  under  the  orders  or  control  of 
an  agent  placed  on  board  by  the  enemy  government.  His 
presence  marks  the  relation  in  which  she  stands  to  the 
enemy.  .  .  . 

"  Third  case.  The  whole  vessel  is  chartered  by  the  enemy 
government  and  is,  therefore,  entirely  at  its  disposal;  it  can 
use  her  for  different  purposes  more  or  less  directly  connected 
with  the  war  during  its  existence,  notably  as  a  transport  or 
auxiliary  vessel — such  as  the  position  of  colliers  which  accom- 
pany a  belligerent  fleet.  .  .  . 

"Fourth  case.  The  vessel  is  at  the  time  exclusively  devoted 
to  the  carriage  of  enemy's  troops  or  to  the  transmission  of  in- 
telligence in  the  enemy's  interest.  ...  So  long  as  such  service 
lasts,  the  vessel  is  liable  to  capture,  even  if,  at  the  moment 
when  an  enemy  cruiser  searches  her,  she  is  engaged  neither  in 
the  transport  of  troops  nor  in  the  transmission  of  intelli- 
gence."' 

"  Art.  47.  Any  individual  embodied  in  the  armed  forces  of 
the  enemy  who  is  found  on  board  a  neutral  merchant  vessel 
may  be  made  a  prisoner  of  war,  even  though  there  be  no 
ground  for  the  capture  of  the  vessel." 

Since  the  formulating  of  the  declaration  of  London  two  cases 
have  occurred  under  this  head.  In  January,  1912,  during  the 
Turko-Italian  War  the  Italian  gunboat  Volturno,  after  hav- 
ing overhauled  in  the  Red  Sea  the  British  steamer  Africa  going 
from  Hadeida  to  Aden,  took  off  and  made  prisoners  of  war 
Colonel  Riza  Bey  and  eleven  other  Turkish  officers.  Although 
the  declaration  of  London  is  not  yet  ratified  by  Great  Britain, 
that  power  did  not  protest  against  the  seizure.^ 

The  Manouha,  a  French  steamer  in  the  same  war,  plying 
between  Marseilles  and  Tunis,  was  stopped  in  the  same  month 
by  an  Italian  torpedo-boat  destroyer,  Agordat,  in  the  Mediter- 
ranean, taken  by  her  into  Cagliari,  and  there  twenty-nine 

*  Accompanying  letter,  declaration  of  London,  Appendix  IV. 
2  Oppenheim,  vol.  II,  pp.  531,  etc. 


UNNEUTRAL  SERVICE  447 

Turkish  passengers,  suspected  of  belonging  to  the  Turkish 
army,  were  finally  delivered  to  the  Italian  authorities.  It  was 
agreed  between  the  two  governments  to  refer  the  case  to  The 
Hague  tribunal,  which  was  done,  and  the  tribunal  on  May  6, 
1913,  decided  that  the  Italian  naval  authorities  had  sufficient 
reason  to  believe  that  the  Ottoman  subjects  on  board,  or  at 
least  some  of  them,  were  enlisted  men  in  the  enemy's  army, 
and  hence  they  had  the  right  to  compel  the  surrender  of  these 
passengers  to  them.^ 

196.  Case  of  the  "Trent."— The  case  of  the  Trent  ap- 
proaches the  conditions  under  the  last  article,  though  the 
character  of  the  persons  taken  off  was  not  military.  The 
circumstances  were  as  follows: 

The  Trent,  an  English  mail-steamer  making  passage  from 
Havana  to  St.  Thomas,  W.  I.,  was  stopped  at  sea  by  the  U.  S.  S. 
San  Jacinto,  under  the  command  of  Captain  Wilkes,  and 
Messrs.  Mason  and  Slidell,  on  their  way  as  Confederate  com- 
missioners to  France  and  England  with  their  suite,  were  taken 
on  board  the  San  Jacinto  and  then  transferred  to  Fort  Warren, 
in  Boston  Harbor. 

The  Trent  was  then  allowed  to  proceed  on  her  voyage. 
Captain  Wilkes  reported  that  he  had  taken  off  these  officials 
as  contraband,  as  they  were  the  embodiment  of  contraband 
despatches. 

Great  Britain  demanded  their  surrender  upon  the  grounds 
that  they  were  civilians  taken  out  of  a  neutral  ship  on  the  high 
seas  engaged  in  an  innocent  voyage  from  one  neutral  port  to 
another. 

These  persons  were  surrendered  to  Great  Britain  on  the 
grounds  that  they  were  contraband  of  war,  but  that  they  could 
not  be  properly  separated  from  the  ship,  which  should  have 
been  captured  and  brought  into  port  for  trial  by  a  prize-court. 

On  the  whole  it  can  be  summed  up: 

1.  That  the  commissioners  could  not  be  considered  as  con- 
^  A.  J.  I.  L.,  vol.  VII,  no.  3,  pp.  634,  etc. 


448  BELLIGERENTS  AND  NEUTRALS 

traband  of  war,  being  neither  military  in  their  character  nor 
engaged  or  embodied  in  the  military  service. 

2.  The  fact  that  the  port  of  origin  and  port  of  destination 
were  both  neutral  was  a  presumption  of  the  innocence  of  the 
vessel  and  her  passengers. 

3.  From  the  discussions  arising  from  this  affair,  it  seems  to 
be  the  consensus  of  opinion  of  authorities  that  "neutral  states 
have  a  right  to  the  use  of  the  high  seas  for  diplomatic  com- 
munication with  either  belligerent  as  well  as  with  each  other 
.  .  .  and  that  the  diplomatic  agent  of  an  enemy  state  cannot 
be  taken  from  a  neutral  vessel  or  on  neutral  territory."^ 

Captain  Wilkes  had  the  undoubted  right  to  visit  and  search 
the  Trent.  If  resistance  to  search  had  been  made  under  pres- 
ent ruling  the  Trent  would  have  been  legally  liable  to  capture. 
Furthermore,  persons  engaged  in  unneutral  service  or  embodied 
in  the  military  service  of  the  enemy  can  be  considered  as  anal- 
ogous to  contraband,  as  we  have  seen,  and  can  be  either  taken 
out  of  the  ship  or  under  certain  circumstances  taken  with  the 
vessel  for  adjudication  and  condemnation. 

It  is  interesting  in  this  connection  to  relate  the  case  of  Henry 
Laurens,  who  was  sent  during  our  Revolutionary  War  upon  a 
mission  to  Holland,  with  the  authority  of  Congress,  to  secure 
the  recognition  of  the  independence  of  the  revolted  colonies 
and  obtain  a  loan  of  money.  He  was  seized  on  board  of  a 
Dutch  packet,  a  neutral  vessel,  bound  to  a  neutral  port  in  Hol- 
land, he  was  conveyed  as  a  prisoner,  eventually,  to  the  Tower 
in  London,  under  a  charge  of  treason,  until  the  surrender  at 
Yorktown,  when  he  was  exchanged  for  Cornwallis.'^ 

Oppenheim  makes  the  following  statement,  which  is  of  an 
exceptional  character. 

"Quite  different,"  he  says,  "from  the  case  of  seizure  of  such 
enemy  persons  and  despatches  as  a  vessel  cannot  carry  without 
exposing  itself  to  punishment  is  the  case  where  a  vessel  has 

^Hershey,  "Essentials,"  etc.,  pp.  280,  etc. 

*  Upton,  "Law  of  Nations  Affecting  Commerce,"  pp.  360,  36L 


UNNEUTRAL  SERVICE  449 

such  enemy  persons  and  despatches  on  board  as  she  is  allowed 
to  carry,  but  whom  a  belligerent  believes  it  to  be  necessary  in 
the  interest  of  self-preservation  to  seize.  Since  necessity  in  the 
interest  of  self-preservation  is,  according  to  international  law, 
an  excuse  for  an  illegal  act,  a  belligerent  may  seize  such  persons 
and  despatches,  provided  that  such  seizure  is  not  merely  desira- 
ble but  absolutely  necessary  in  the  interest  of  self-preservation, 
as,  for  instance,  in  the  case  where  an  ambassador  of  the  enemy 
on  board  a  neutral  vessel  is  on  the  way  to  submit  to  a  neutral 
a  draught  treaty  of  alliance  injurious  to  the  other  belligerent."^ 

This,  of  course,  is  an  exigency  which  was  not  existing  in  the 
Trent  affair. 

197.  The  Opening  to  Neutrals  of  a  Trade  Closed  in  Peace. 
— Under  a  commentary  on  Article  46  of  the  declaration  of 
London,  previously  mentioned,  the  accompanying  report  says 
that  "  it  was  proposed  to  treat  as  an  enemy  merchant  vessel  a 
neutral  vessel  making,  at  the  time,  and  with  the  sanction  of  the 
enemy  government,  a  voyage  which  she  has  only  been  permitted 
to  make  subsequent  to  the  outbreak  of  hostilities  or  during  the 
two  preceding  months.  This  rule  would  be  enforced  notably 
upon  neutral  merchant  vessels  admitted  by  a  belligerent  to  a 
service  reserved  in  time  of  peace  to  the  national  merchant 
marine  of  that  belligerent,  for  instance,  to  the  coasting  trade. 
Several  delegations  formally  rejected  this  proposal,  so  that  the 
question  thus  raised  remains  an  open  one."^ 

The  American  delegation  was  one  of  those  who  formally 
rejected  this  proposition,  which  was  a  revival  of  the  well-known 
rule  of  the  war  of  1756,  by  which  Great  Britain  claimed  the 
right  to  treat  neutral  vessels  as  enemy  ships  when  they  engaged 
in  a  colonial  or  other  trade  in  time  of  war  denied  them  in  time 
of  peace.  Such  a  rule,  if  adopted,  would  have  applied  to  our 
coasting  trade,  with  its  extension  to  the  Hawaiian  Islands  and 
the  Philippines,  and  to  the  "cabotage"  of  the  French.    The 

*  Oppenheim,  2d  ed.,  vol.  II,  p.  532. 

*  Accompanying  report,  Appendix  IV. 


450  BELLIGERENTS  AND  NEUTRALS 

matter  is  left  open  now  to  such  practice  as  the  individual  states 
should  follow  until  it  may  be  decided  by  an  international 
prize-court.  The  matter  was  formally  presented  by  the  Brit- 
ish delegation  in  a  memorandum  upon  the  subject.  The 
German  delegation  presented  a  memorandum  which  contained 
an  assertion  that  "a  ship  flying  a  neutral  flag  can,  nevertheless, 
be  treated  as  an  enemy  ship,  if  she  is  making  at  the  time  and 
with  the  sanction  of  the  enemy  government  a  voyage  which 
she  has  only  been  permitted  to  make  subsequently  to  the  out- 
break of  hostilities  or  during  the  two  preceding  months." 

Practically  France,  Russia,  and  Holland  sided  with  the  United 
States  in  opposition  to  this  proposition,  which  was  upheld  by 
a  minority  only  of  the  conference. 

The  advocacy  of  the  rule  of  the  war  of  1756  has  been  revived 
of  late  by  such  modern  English  writers  as  Oppenheim,  Higgins, 
Manning,  and  Phillimore,  and  originally  by  such  early  author- 
ities as  Sir  William  Scott,  Mr.  James  Stephen,  and  seconded 
by  some  American  authorities  such  as  Chancellor  Kent,  Justice 
Story,  General  Halleck,  and  Admiral  Mahan.  On  the  other 
hand,  Wharton,  citing  Lyman's  "Diplomacy  of  the  United 
States,"  says  that: 

"To  permit  one  belligerent  to  shut  out  neutrals  from  a  com- 
merce not  being  in  contraband  of  war  or  in  evasion  of  blockade 
would  impose  upon  neutrality  burdens  so  intolerable  as  to 
make  war  on  its  part  preferable  to  peace." 

Hall,  an  English  authority,  says: 

"The  arguments  which  may  be  urged  on  behalf  of  the  right 
of  neutrals  to  seize  every  occasion  of  extending  their  general 
commerce  do  not  seem  susceptible  of  a  ready  answer.  Neutrals 
are  in  no  way  privy  to  the  reasons  which  may  actuate  a  bellig- 
erent in  throwing  open  a  trade  which  he  has  previously  been 
unwilling  to  share  with  them.  They  can  be  no  more  bound 
to  inquire  into  his  objects  in  offering  it  to  them  than  they  are 
bound  to  ask  what  it  is  proposed  to  do  with  the  guns  which  are 
bought  in  their  markets.    The  merchandise  which  they  carry 


UNNEUTRAL  SERVICE  451 

is  in  itself  innocent  or  is  rendered  so  by  being  put  into  their 
ships;  in  the  case  of  the  coasting  trade  they  take  it  to  ports 
into  which  they  can  carry  like  merchandise  brought  from  a 
neutral  harbor,  and  the  obstructing  belligerent  is  unable  to 
justify  his  prohibition  by  any  military  strength  which  it  con- 
fers upon  him."^ 

Higgins,  in  discussing  the  case  in  favor  of  the  rule,  closes  with 
these  remarks:  "Every  assistance  given  to  a  belligerent  by 
neutral  merchant  ships  tends  to  the  lengthening  of  war,  the 
increased  suffering  of  the  combatants  and  the  civilian  popula- 
tion, and  the  greater  dislocation  of  the  trade  of  the  world.  It 
is  surely  in  accordance  with  the  general  principles  of  justice 
and  equity  and  a  logical  deduction  from  admitted  principles 
of  the  duties  as  a  generally  accepted  international  legal  doc- 
trine 


2 


198.  Rescue  of  Shipwrecked  Belligerents  by  Neutral 
Vessels. — The  most  pertinent  article  concerning  this  subject 
beyond  the  references  made  to  hospital  ships  is  Article  9  of 
The  Hague  convention  of  1907  for  the  adaptation  of  the  princi- 
ples of  the  Geneva  convention  of  1906  to  maritime  war.  It 
reads  as  follows: 

"  Belligerents  may  appeal  to  the  charity  of  the  commanders 
of  neutral  merchantmen,  yachts,  or  boats  to  take  on  board 
and  tend  the  sick  and  wounded. 

"  Vessels  responding  to  this  appeal,  as  also  the  vessels  which 
have  of  their  own  accord  rescued  wounded,  sick,  or  shipwrecked 
men,  shall  enjoy  special  protection  and  certain  immunities. 
In  no  case  can  they  be  captured  for  having  such  persons  on 
board;  but,  subject  to  any  undertaking  that  may  have  been 
given  to  them,  they  may  remain  liable  to  capture  for  any  vio- 
lations of  neutrality  they  may  have  committed."' 

Article  12,  which  supplements  the  above  rather  vague  article, 

reads  as  follows: 

1  Hall,  6th  ed.,  pp.  634,  635. 

»  Higgins,  "War  and  the  Private  Citizen,"  p.  192. 

•  Higgins,  "Peace  Conferences,"  Convention  X,  p.  367. 


452  BELLIGERENTS  AND  NEUTRALS 

"Any  war-ship  belonging  to  a  belligerent  may  demand  the 
surrender  of  the  wounded,  sick,  or  shipwrecked  who  are  on 
board  military  hospital  ships,  hospital  ships  belonging  to  relief 
societies  or  to  private  individuals,  merchant  ships,  yachts,  and 
boats,  whatever  the  nationality  of  such  vessels." 

This  touches  what  is  known  as  the  Deerhound  affair  of  June 
19,  1864,  which  occurred  during  the  American  Civil  War. 
Briefly,  it  may  be  stated  as  follows :  Captain  Semmes  and  some 
of  the  crew  of  the  Alabama,  after  her  fight  with  the  Kearsarge 
off  Cherbourg  where  she  was  sunk  in  combat,  were  picked  up 
by  request  by  the  British  yacht  Deerhound,  the  owner  of  which 
claimed  for  the  rescued  the  inviolability  of  the  neutral  flag, 
and,  while  dropping  out  of  range  of  the  Kearsarge,  refused  to 
surrender  the  shipwrecked  and  rescued  belligerents  on  board,  in 
which  action  they  were  sustained  by  the  British  Government. 

The  proposition  above  quoted  in  Article  12  was  originally 
proposed  by  then  Captain  Mahan  as  an  American  delegate  to 
The  Hague  conference  of  1899  but  not  adopted. 

Of  this  matter  Higgins,  an  English  writer,  says: 

"The  solution  of  the  difficulty  provided  by  this  article  is, 
however,  one  which  may  be  justified  by  practical  considera- 
tions. Among  those  on  board  a  hospital  or  merchant  ship 
may  be  found  the  '  brain '  of  one  of  the  belligerent  navies,  and 
military  necessity  might  be  appealed  to  as  a  justification  for 
his  removal.  A  belligerent  would  take  the  risk  of  complica- 
tions with  the  neutral  power.  Moreover,  the  neutral  captain 
might,  from  unforeseen  circumstances,  be  unable  to  land  the 
sick,  wounded,  or  shipwrecked  at  a  neutral  port  where  they 
would  be  interned."^ 

The  British  delegation  upon  this  article  made  the  reserva- 
tion that  "His  Majesty's  Government  understands  Article  12 
to  apply  only  to  the  case  of  combatants  rescued  during  or  after 
a  naval  engagement  in  which  they  have  taken  part." 

The  case  of  the  rescue  of  the  officers  and  crew  of  the  Russian 
*  Higgins,  "Peace  Conferences,"  p.  389. 


UNNEUTRAL  SERVICE  453 

ships  Variag  and  Korietz  in  Chemulpo,  Korea,  is  of  interest 
in  this  connection.  It  is  as  follows:  Japan  severed  her  diplo- 
matic relations  with  Russia  on  February  6,  1904,  and  was 
considered  to  be  at  war  with  Russia  after  that  date. 

On  February  8,  Admiral  Urio,  commanding  a  Japanese 
force,  demanded  that  the  Russian  vessels  above-mentioned 
should  leave  the  harbor  before  noon  of  the  9th  of  February. 
During  the  forenoon  of  the  9th  the  Russian  vessels  started  out 
and  a  short  action  occurred,  after  which  these  vessels  returned 
and  the  Variag  was  abandoned  and  sunk  and  the  Korietz 
blown  up.  Before  this  time,  on  the  midnight  of  the  8th,  the 
Japanese  land  forces  which  had  been  previously  landed,  were  in 
effective  possession  of  the  town  of  Chemulpo.  Boats  from  the 
neutral  men-of-war  in  port  after  the  fight  rescued  the  personnel 
of  the  Variag  and  put  them  on  board  of  the  British  cruiser 
Talbot  and  the  Italian  war  vessel  Elba.  The  crew  from  the 
Korietz  left  that  vessel  before  she  was  blown  up  and  took  refuge 
on  board  the  French  vessel  of  war  Pascal. 

The  Japanese  admiral  did  not  demand  the  surrender  of  the 
rescued  Russians,  but  representatives  of  France,  Great  Britain, 
and  Italy  in  Seoul  conferred  with  the  Japanese  representative, 
and  it  was  agreed  that  the  rescued  persons  should  be  taken  to 
Chinese  ports  with  the  understanding  that  they  were  not  to 
serve  again  until  the  end  of  the  war. 

This  action  was  in  accordance  with  Convention  X  in  Articles 
13,  14,  and  15. 

In  case  shipwrecked  belligerents  are  landed  in  neutral 
territory  by  their  rescuers  who  are  not  men-of-war,  it  is 
proper  to  release  them  provided  that  they  give  their  word 
not  to  serve  again  during  that  war.  In  this  case  it  is  under- 
stood that  no  belligerent  man-of-war  is  in  sight  or  has  made 
a  demand. 

igg.  Destruction  of  Neutral  Prizes. — This  was  one  of  the 
subjects  concerning  which  an  agreement  was  reached  at  the 
London  naval  conference.     It  was  generally  conceded  at  this 


454  BELLIGERENTS  AND  NEUTRALS 

conference  that  in  principle  a  neutral  prize  ought  not  to  be 
destroyed  but  should  be  taken  to  a  prize-court;  but  under  the 
stress  of  necessity,  military  necessity  bordering  apon  self- 
preservation,  a  vessel  otherwise  liable  to  be  condemned  might 
be  destroyed,  subject  to  indemnity  in  an  unjustifiable  case,  and 
provided  that  the  papers  and  the  persons  on  board  be  properly 
cared  for. 

"  Art.  48.  A  neutral  vessel  which  has  been  captured  may  not 
be  destroyed  by  the  captor;  she  must  be  taken  into  such  port 
as  is  proper  for  the  determination  there  of  all  questions  concern- 
ing the  validity  of  the  capture."^ 

This  establishes  the  principle  as  to  destruction. 

"Art.  49.  As  an  exception,  a  neutral  vessel  which  has  been 
captured  by  a  belligerent  war-ship,  and  which  would  be  liable 
to  condemnation,  may  be  destroyed  if  the  observance  of  Article 
48  would  involve  danger  to  the  safety  of  the  war-ship  or  to  the 
success  of  the  operations  in  which  she  is  engaged  at  the  time. 

"  Art.  50.  Before  the  vessel  is  destroyed  all  persons  on  board 
must  be  placed  in  safety  and  all  the  ship's  papers  and  other 
documents  which  the  parties  interested  consider  relevant  for 
the  purpose  of  deciding  on  the  validity  of  the  capture  must  be 
taken  on  board  the  war-ship. 

"Art.  51.  A  captor  who  has  destroyed  a  neutral  vessel  must, 
prior  to  any  decision  respecting  the  validity  of  the  prize,  estab- 
lish that  he  only  acted  in  the  face  of  an  exceptional  necessity 
of  the  nature  contemplated  in  Article  49.  If  he  fails  to  do  this, 
he  must  compensate  the  parties  interested,  and  no  examination 
shall  be  made  of  the  question  whether  the  capture  was  valid 
or  not. 

"  Art.  52.  If  the  capture  of  a  neutral  vessel  is  subsequently 
held  to  be  invalid,  though  the  act  of  destruction  has  been  held 
to  have  been  justifiable,  the  captor  must  pay  compensation 
to  the  parties  interested,  in  place  of  the  restitution  to  which 
they  would  have  been  entitled. 

*  See  Appendix  IV,  declaration  of  London. 


UNNEUTRAL  SERVICE  455 

"Art.  53.  If  neutral  goods  not  liable  to  condemnation  have 
been  destroyed  with  the  vessel,  the  owner  of  such  goods  is 
entitled  to  compensation. 

"Art.  54.  The  captor  has  the  right  to  demand  the  handing 
over,  or  to  proceed  himself  to  the  destruction  of,  any  goods 
liable  to  condemnation  found  on  board  a  vessel  not  herself 
liable  to  condemnation,  provided  that  the  circumstances  are 
such  as  would,  under  Article  49,  justify  the  destruction  of  a 
vessel  herself  liable  to  condemnation.  The  captor  must  enter 
the  goods  surrendered  or  destroyed  in  the  log-book  of  the 
vessel  stopped,  and  must  obtain  duly  certified  copies  of  all  rel- 
evant papers.  When  the  goods  have  been  handed  over  or 
destroyed,  and  the  formalities  duly  carried  out,  the  master 
must  be  allowed  to  continue  his  voyage. 

"The  provisions  of  Articles  51  and  52  respecting  the  obliga- 
tions of  a  captor  who  has  destroyed  a  neutral  vessel  are  applica- 
ble."^ 

Article  50  of  the  laws  and  usages  of  war  at  sea,  known  as 
United  States  Naval  War  Code,  makes  no  discrimination  be- 
tween the  destruction  of  enemy  and  neutral  merchant  prizes 
when  necessity  requires  it.  This  code  was  embodied  in  the  in- 
structions of  the  United  States  to  the  American  delegation  at 
London. 

The  question  of  the  destruction  of  neutral  prizes  at  sea  occa- 
sioned very  considerable  discussion  in  England,  to  an  extent 
arising  from  the  destruction  of  the  British  ship  Knight-Comr 
mander  and  some  others  during  the  Russo-Japanese  War. 

An  English  author  in  a  book  treating  of  the  subject  of  the 
declaration  of  London  sums  up  upon  this  particular  question  as 
follows: 

"The  articles  of  the  declaration,  though  they  are  not  as 
deterrent  as  might  have  been  desired,  are  at  least  calculated  to 
secure  more  respect  for  the  neutral  and  to  place  a  larger  mea- 
sure of  responsibility  on  the  belligerent  than  was  witnessed  in 
*  See  Appendix  IV,  declaration  of  London. 


456  BELLIGERENTS  AND  NEUTRALS 

the  American  Civil  and  the  Russo-Japanese  Wars.  Of  course 
there  is  no  reason  why  Great  Britain  should  depart  from  her 
present  custom  of  not  sinking  neutral  prizes,  save  in  very  ex- 
ceptional circumstances;  and  our  abundance  of  ports  in  every 
ocean  makes  it  more  feasible  for  our  cruisers  than  for  those  of 
other  nations  to  bring  their  prizes  in  for  adjudication.  We 
are  thus  enabled  to  gain  by  adding  the  captured  vessels  to  our 
marine  and  confiscating  their  cargo;  and  with  the  new  limitation 
on  the  right  to  destroy,  our  traders  will  be  able  to  secure  com- 
pensation in  any  case  where  their  captured  vessels  would  not 
have  been  liable  to  condemnation  if  they  had  been  brought  in 
for  adjudication  instead  of  being  destroyed.  The  outcry 
against  destruction  of  prizes  is  largely  founded  upon  the  fact 
that  neutral  vessels  have  been  sunk  by  their  captors  which 
should  not  by  the  law  of  nations  have  been  condemned  at  all. 
Now,  the  circumstances  in  which  a  neutral  vessel  is  liable  to 
condemnation  are  quite  clearly  laid  down  by  the  declaration 
and  the  obligation  of  the  belligerent  to  pay  full  compensation 
to  the  neutral  ship  owner  and  cargo  owner  where  a  prize  is 
sunk  which  is  not  legally  liable  to  condemnation,  and,  lastly, 
the  power  which  the  neutral  will  have,  if  the  declaration  and  the 
prize-court  are  ratified,  of  taking  the  question  of  the  validity 
of  the  destruction  to  an  international  tribunal  which  will  have 
no  prejudice  in  favor  of  the  belligerent,  form  together  a  com- 
bination of  safeguards  which  should  prevent  outrages  upon 
neutral  commerce  such  as  the  Russo-Japanese  War  produced, 
and  should  make  the  right  of  sinking  prizes  in  future  wars  ex- 
ceptional in  fact  as  well  as  in  theory."^ 

*  Norman  Bentwich,  "Declaration  of  London,"  p.  98. 


UNNEUTRAL  SER\1CE  457 


TOPICS  AND  REFERENCES 

1.  The  Carriage  of  Persons  and  Despatches  for  the  Enemy — 

Hall,  "International  Law,"  6th  ed.,  674-«85.  Moore's  "Digest," 
vol.  VII,  752-768.     Higgins,  "Peace  Conferences,"  593-7. 

2.  The  Case  of  the  Trent— 

Harris,  "The  Trent  Affau-."  Dana,  note  228  to  Wheaton,  8th  ed., 
664.     Atherley-Jones,  "Commerce  in  War,"  311-315. 

3.  The  Opening  to  Neutrals  of  a  Trade  Closed  m  Peace — 

Higgins,  "War  and  the  Private  Citizen,"  part  V.  Moore's  "Di- 
gest," vol.  VII.  1104^9.  Hall,  6th  ed.,  631-2.  Mahan,  "Some 
Neglected  Aspects  of  War,"  191. 

A.  Rescue  of  Shipwrecked  Belligerents  by  Neutral  Vessels — 

Higgins,  "Hague  Conferences,"  Convention  X,  367-389.  Naval 
War  College,  "Topics,"  etc.,  1904, 117-128.  Oppenheim,  2d  ed., 
vol.  II,  252-262. 

fi.  Destruction  of  Neutral  Prizes — 

Hershey,  "Essentials,"  520-2.  Naval  War  College,  "International 
Law  Situations,"  1905, 62-76.  T.  J.  Lawrence,  "Principles,"  4th 
ed.,  191. 


CHAPTER  XXVIII 

TRANSFER  OF  FLAG.    ENEMY  CHARACTER. 
PRIZE-COURTS 

200.  Transfer  to  a  Neutral  Flag.— The  freedom  of  a  neu- 
tral vessel  from  the  capture  to  which  an  enemy  merchant 
vessel  is  subject  has  led  in  the  past  to  an  evasion  of  capture  by 
the  transfer  of  an  enemy  vessel  to  the  flag  of  a  neutral  state. 
Consequently,  one  of  the  duties  of  a  belligerent  cruiser  is  to 
ascertain  whether  such  a  transfer  has  been  made  and,  if  so, 
whether  it  has  been  legitimate  or  only  for  the  purpose  of  evad- 
ing a  capture.  Fortunately,  this  question  was  taken  up  by  the 
London  naval  conference  with  a  resultant  agreement  as  to  the  * 
treatment  of  the  subject  which  seems  to  meet  the  occasions 
so  far  as  possible  when  we  consider  the  diversity  of  interests 
involved.  The  matter  is  found  in  the  various  articles  in  Chapter 
V  of  the  declaration,  the  first  of  which  is  numbered  55  and 
reads  as  follows: 

"Art.  55.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag 
effected  before  the  outbreak  of  hostilities  is  valid,  unless  it  is 
proved  that  such  transfer  was  made  in  order  to  evade  the  con- 
sequences to  which  an  enemy  vessel,  as  such,  is  exposed. 
There  Is,  however,  a  presumption,  if  the  bill  of  sale  is  not  on 
board  a  vessel  which  has  lost  her  belligerent  nationality  less 
than  sixty  days  before  the  outbreak  of  hostilities,  that  the 
transfer  is  void.     This  presumption  may  be  rebutted. 

"Where  the  transfer  was  effected  more  than  thirty  days 
before  the  outbreak  of  hostilities,  there  is  an  absolute  pre- 
sumption that  it  is  valid  if  it  is  unconditional,  complete,  and  in 
conformity  with  the  laws  of  the  countries  concerned,  and  if  its 

458 


TRANSFER  OF  FLAG  459 

effect  is  such  that  neither  the  control  of  nor  the  profits  earned 
by,  the  vessel  remain  in  the  same  hands  as  before  the  transfer. 
If,  however,  the  vessel  lost  her  belligerent  nationality  less  than 
sixty  days  before  the  outbreak  of  hostilities,  and  if  the  bill  of 
sale  is  not  on  board,  the  capture  of  the  vessel  gives  no  right  to 
damages. 

"  Art.  56.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag 
effected  after  the  outbreak  of  hostilities  is  void  unless  it  is 
proved  that  such  transfer  was  not  made  in  order  to  evade  the 
consequences  to  which  an  enemy  vessel,  as  such,  is  exposed. 

"Provided  that  there  is  an  absolute  presumption  that  a 
transfer  is  void — 

"  (1)  If  the  transfer  has  been  made  during  a  voyage  or  in  a 
blockaded  port. 

"(2)  If  a  right  to  repurchase  or  recover  the  vessel  is  re- 
served to  the  vender. 

"  (3)  If  the  requirements  of  the  municipal  law  governing  the 
right  to  fly  the  flag  under  which  the  vessel  is  sailing  have  not 
been  fulfilled." 

The  American  delegation  to  the  London  conference  in  their 
report  to  the  secretary  of  state  made  a  statement  concerning 
this  subject  as  follows: 

"  It  has  been  decided  that  commerce  in  ships  in  time  of  war 
is,  in  general,  not  legitimate  unless  it  is  bona  fide  commerce  and 
not  undertaken  to  evade  the  consequences  to  which  the  ship 
would  be  liable  if  it  retained  the  enemy  flag.  The  burden  of 
proof  of  validity  of  the  transfer  is  placed  on  the  vender.  In 
all  such  cases  commerce  would  be  regarded  as  illegitimate 
when  the  transfer  is  made  (1)  in  transitu  or  in  a  blockaded 
port,  (2)  with  the  right  of  repurchase  or  return,  or  (3)  contrary 
to  the  laws  of  the  flag  which  it  bears. 

"  It  would  also  be  possible,  and  to  some  extent  has  been  the 
practice,  for  ship  owners  anticipating  war  to  make  transfers 
just  before  the  outbreak  of  war.  Such  transfers,  when  made 
with  the  view  to  evading  the  consequences  of  the  war  and  not 


460  BELLIGERENTS  AND  NEUTRALS 

as  commercial  transactions,  are  not  regarded  as  legitimate, 
but  the  burden  of  proof  rests  upon  the  captor,  except  when  the 
papers  in  regard  to  the  transfer,  which  has  been  made  within 
sixty  days  before  the  outbreak  of  war,  are  not  on  board.  In 
this  exceptional  case  the  burden  of  proof  of  the  validity  of  the 
transfer  is  placed  on  the  vessel,  as  there  is  not  sufficient  evi- 
dence at  hand  in  the  ship's  papers  to  enable  the  captor  to  re- 
lease the  ship. 

"  It  would,  however,  be  an  undue  interference  with  commerce 
if  all  sales  or  sales  made  a  long  time  before  the  war  were  liable 
to  be  regarded  as  invalid.  It  is,  therefore,  decided  that  sales 
made  more  than  thirty  days  before  the  war,  even  though  made 
with  the  idea  of  evading  the  consequences  of  a  war  which  might 
subsequently  break  out,  would  be  valid  unless  there  is  some 
irregularity  in  the  transfer  itself,  or  unless  it  is  not  an  actual 
transfer,  evidence  of  which  might  be  in  the  fact  that  the  profits 
and  control  remain  in  the  same  hands  as  before  the  sale. 

"  There  are  thus  established  three  periods  under  which  trans- 
fer of  flag  is  considered,  (1)  during  war,  when  burden  of  proof 
of  the  validity  of  the  transfer  rests  upon  the  vender;  (2)  a  pe- 
riod of  thirty  days  before  the  war,  during  which  it  is  necessary 
for  the  captor  to  prove  that  the  transfer  is  made  to  evade  the 
consequences  of  war;  and  (3)  the  period  prior  to  thirty  days, 
when,  regardless  of  whether  or  not  the  transfer  is  made  to 
escape  the  consequences  of  war,  it  is  necessary  for  the  captor 
to  establish  that  the  transfer  itself  is  irregular,  or  not  in  fact  a 
transfer.  It  is  also  necessary  that,  in  order  to  have  advantages 
of  these  provisions,  a  vessel  transferred  within  sixty  days  before 
the  war  shall  have  the  papers  relating  to  the  sale  on  board. 

"These  provisions  establish  much  more  definite  rules,  where 
formerly  there  had  been  great  diversity  of  practice  among 
states,  or  even  diversity  in  the  same  state  at  different  periods. 
Commerce  in  ships  is  recognized  as  legitimate  under  such  re- 
strictions as  seem  necessary  in  order  to  safeguard  belligerent 
rights." 


TRANSFER  OF  FLAG  461 

201.  Enemy  Character. — The  agreement  of  the  London  con- 
ference upon  this  subject,  though  an  advance  in  deaUng  with 
the  subject,  is  fragmentary  and  confined  to  four  articles  only. 
The  first  article  under  the  head  of  enemy  character  is  Article  57, 
which,  with  its  qualifications,  may  be  said  to  be  a  fundamental 
rule  about  which  usage  and  code  agree  and  which  permits  but 
little  discussion.     It  reads: 

"Subject  to  the  provisions  respecting  transfer  to  another  flag, 
the  neutral  or  enemy  character  of  a  vessel  is  determined  by  the 
flag  which  she  is  entitled  to  fly. 

"  The  case  where  a  neutral  vessel  is  engaged  in  a  trade  which 
is  closed  in  time  of  peace  remains  outside  the  scope  of  this 
rule  and  is  in  no  wise  affected  by  it." 

Article  58  reads: 

"  The  neutral  or  enemy  character  of  goods  found  on  board  an 
enemy  vessel  is  determined  by  the  neutral  or  enemy  character 
of  the  owner." 

"Unlike  ships,  goods,"  says  the  accompanying  report,  "have 
no  individuality  of  their  own;  their  neutral  or  enemy  character 
is  made  to  depend  upon  the  personal  status  of  their  owner.  .  .  . 
But  what  is  to  determine  the  neutral  or  enemy  character  of  the 
owner?" 

The  solution  of  this  question  by  the  conference  was  not  at- 
tained, as  opinions  were  equally  divided  between  the  determina- 
tion of  the  matter  by  domicile  of  the  owner  and  by  that  of  his 
nationality. 

This  question  of  the  determination  of  the  enemy  character 
of  an  individual  will  be  again  mentioned  in  the  final  chapter  of 
this  volume  treating  of  open  questions.  It  is  an  unsettled  sub- 
ject which  to  a  large  extent  arranges  itself  upon  the  old  lines  of 
the  Anglo-American  as  opposed  to  the  continental  system. 
Holland,  Spain,  and  Japan  agreed  with  the  Anglo-American 
practice,  while  Austria-Hungary,  Italy,  Germany,  and  Russia 
sided  with  France  that  nationality  was  the  determining  factor. 

Article  59  reads: 


462  BELLIGERENTS  AND  NEUTRALS 

"In  the  absence  of  proof  of  the  neutral  character  of  goods 
found  on  board  an  enemy  vessel,  they  are  presumed  to  be  enemy 
goods." 

Article  60  is  that: 

"  Enemy  goods  on  board  an  enemy  vessel  retain  their  enemy 
character  until  they  reach  their  destination,  notwithstanding 
any  transfer  effected  after  the  outbreak  of  hostilities  while  the 
goods  are  being  forwarded. 

"If,  however,  prior  to  the  capture,  a  former  neutral  owner 
exercises,  on  the  bankruptcy  of  an  existing  enemy  owner,  a 
recognized  legal  right  to  recover  the  goods,  they  regain  their 
neutral  character." 

These  articles  are  traditional  rules  which  are  considered  at 
the  present  time  as  approved  usages. 

202.    The  Sending  in  of  Prizes  for  Their  Adjudication. — 

When  the  belligerent  captor  determines  that  he  has  sufficient 
ground  to  retain  a  vessel  for  the  violation  of  belligerent  rights, 
the  captured  vessel  is  sent  to  a  port  where  a  prize-court  sits 
for  the  purpose  of  adjudication.  Articles  46,  47,  and  48  of  the 
Naval  War  Code  found  in  the  "Laws  and  Usages  of  War  at 
Sea"  give  the  procedure  founded  both  on  the  laws  and  usages 
of  the  United  States.     They  read  as  follows: 

"Prizes  should  be  sent  in  for  adjudication,  unless  otherwise 
directed,  to  the  nearest  suitable  port,  within  the  territory  of 
the  United  States,  in  which  a  prize-court  may  take  action. 

"The  prize  should  be  delivered  to  the  court  as  nearly  as 
possible  in  the  condition  in  which  she  was  at  the  time  of  sei- 
zure, and  to  this  end  her  papers  should  be  carefully  sealed  at 
the  time  of  seizure,  and  kept  in  the  custody  of  the  prize-master. 

"All  witnesses  whose  testimony  is  necessary  to  the  adjudi- 
cation of  the  prize  should  be  detained  and  sent  in  with  her, 
and,  if  circumstances  permit,  it  is  preferable  that  the  officer 
making  the  search  should  act  as  prize-master." 

As  to  the  status  of  the  prize  before  condemnation  the  opin- 
ion given  in  the  discussion  of  the  subject  in  the  international 


TRANSFER  OF  FLAG  463 

law  situations  at  the  Naval  War  College  in  1907  seems  to  be 
sound.     It  states  that: 

"The  principle  that  enemy  goods  and  ships  are  liable  to 
seizure  being  at  present  admitted,  there  can  be  little  objec- 
tion raised  to  placing  the  national  flag  of  the  capturing  vessel 
over  a  seized  vessel  belonging  to  a  belligerent.  It  does  pass,  if 
good  prize,  to  the  state  of  the  captor  upon  capture.  It  is 
brought  in  for  adjudication. 

"In  regard  to  a  neutral  vessel,  the  principle  is  quite  other- 
wise. The  neutral  is  only  seized  and  held  pending  the  decision 
of  the  prize-court." 

In  the  latter  case  it  is  permissible  to  hoist  the  national  flag 
of  the  captor  at  the  fore  and  the  national  flag  of  the  neutral 
vessel  at  the  peak  or  the  flagstaff  at  the  stern. 

In  a  decision  made  by  the  Supreme  Court  of  the  United 
States  in  1902  it  was  stated  that: 

"Until  condemnation,  captors  acquire  no  absolute  right  of 
property  in  a  prize,  though  then  the  right  attaches  as  of  the 
time  of  the  capture,  and  it  is  for  the  government  to  determine 
when  the  public  interests  require  a  different  destination."^ 

203.  Jurisdiction  of  National  Prize  Tribunals. — Articles  1 
and  2  of  Convention  XII  for  the  establishment  of  an  interna- 
tional prize-court,  which  has  been  signed  and  ratified  by  the 
United  States,  read  as  follows: 

"Art.  1.  The  validity  of  the  capture  of  a  merchant  ship 
or  its  cargo  is  decided  before  a  prize-court  in  accordance  with 
the  present  convention  when  neutral  or  enemy  property  is 
involved. 

"Art.  2.  Jurisdiction  in  matters  of  prize  is  exercised  in 
the  first  instance  by  the  prize-courts  of  the  belligerent  captor."* 

The  succeeding  articles  proviile  for  an  appeal  from  the  na- 
tional prize-courts  to  the  proposed  international  prize-court 
when  established. 

»  U.  S.  V.  Dewey  (188  U.  S.  Supreme  Court  Reporta,  p.  254), 
*  See  Appendix  III,  p.  520. 


464  BELLIGERENTS  AND  NEUTRALS 

The  additional  protocol  to  this  convention  was  made  on  the 
19th  of  September,  1910,  to  meet  the  case  of  the  United  States 
and  other  countries  where  appeals  from  the  highest  national 
prize-courts  (in  our  case  the  Supreme  Court  of  the  United 
States)  are  of  doubtful  constitutionality.  This  protocol  is  con- 
sidered as  forming  an  integral  part  of  the  convention  and  was 
ratified  by  the  United  States  as  such.  The  essential  part  of  the 
additional  protocol  is  found  in  the  first  two  articles,  which 
read  as  follows: 

"Art.  1.  The  powers  signatory  or  adhering  to  The  Hague 
convention  of  October  18,  1907,  relative  to  the  establishment 
of  an  international  court  of  prize,  which  are  prevented  by 
diflBculties  of  a  constitutional  nature  from  accepting  the  said 
convention  in  its  present  form  have  the  right  to  declare  in  the 
instrument  of  ratification  or  adherence  that,  in  prize  cases,  the 
international  court  of  prize  can  only  be  exercised  against  them 
in  the  form  of  an  action  in  damages  for  the  injury  caused  by 
the  capture." 

"Article  2.  In  the  case  of  recourse  to  the  international 
court  of  prize,  in  the  form  of  an  action  for  damages.  Article  8 
of  the  convention  is  not  applicable:  it  is  not  for  the  court  to 
pass  upon  the  validity  or  nullity  of  the  capture  nor  to  reverse 
or  affirm  the  decision  of  the  national  tribunals. 

"  If  the  capture  is  considered  illegal,  the  court  determines  the 
amount  of  damages  to  be  allowed,  if  any,  to  the  claimants."^ 

In  Article  4  of  Convention  XIII  of  the  second  Hague  con- 
ference, duly  accepted  by  the  United  States,  it  is  provided  that 
a  prize-court  cannot  be  set  up  by  a  belligerent  on  neutral  terri- 
tory or  on  a  vessel  in  neutral  waters.  "This  rule  has,"  as  Hig- 
gins  says,  "long  been  recognized  as  a  rule  of  international  law 
toward  the  establishment  of  which  the  action  of  the  United 
States  in  1793  contributed  in  a  great  degree."*  The  article 
of  the  same  convention  numbered  23,  which  allows  prizes  to 

*See  Appendix  III,  p.  521. 

*  Higgins,  "  Peace  Conferences,"  pp.  447-463. 


TRANSFER  OF  FLAG  465 

remain  in  neutral  waters  pending  the  decision  of  a  belligerent 
prize-court,  was  not  accepted  by  the  United  States.* 

"The  jurisdiction  of  prize-courts,"  says  Lawrence,  "extends 
over  all  captures  made  in  war  by  their  country's  cruisers,  over 
all  captures  made  on  land  by  a  naval  force  acting  alone  or  in 
conjunction  with  military  forces,  and  over  seizures  made  afloat 
by  the  joint  operation  of  land  and  sea  forces.  It  also  includes 
all  recaptures,  ransoms,  and  ransom  bills,  and  all  incidental 
questions  growing  out  of  the  circumstances  of  capture  such  as 
freights  and  damages.  And  when  it  was  customary  for  states 
to  make  seizures  afloat  in  anticipation  of  war,  the  cases  that 
arose  therefrom  were  taken  before  prize-courts.  Speaking  gen- 
erally, we  may  lay  down  the  proposition  that  the  courts  of 
neutrals  have  no  jurisdiction  over  the  captures  of  belligerents. 

"But  to  this  rule  there  are  exceptions.  Jurisdiction  exists 
and  can  be  exercised  when  the  capture  is  made  within  the 
territorial  limits  of  the  neutral  state,  or  when  a  vessel,  origi- 
nally equipped  for  war  within  neutral  jurisdiction,  or  afterward 
made  efficient  by  an  augmentation  of  warlike  force  therein, 
takes  a  prize  at  sea  and  brings  it  within  the  waters  of  the  in- 
jured neutral  during  the  voyage  in  which  the  illegal  equipment 
or  augmentation  took  place.  In  both  cases  neutral  sovereignty 
is  violated  by  one  belligerent,  and  in  consequence  the  neutral 
is  exposed  to  claims  and  remonstrances  from  the  other.  Juris- 
diction is  therefore  conferred  upon  it  for  its  own  protection 
and  in  order  that  it  may  insist  upon  the  restoration  of  the 
property  unlawfully  taken." ^ 

By  Section  5287  of  the  United  States  Revised  Statutes  juris- 
diction is  conferred  upon  the  United  States  district  courts 
over  prizes  taken  illegally  and  improperly  by  vessels  fitted  out 
or  augmented  in  force  within  the  limits  of  the  United  States. 
Of  this  Fenwick  says: 

"In  other  words,  where  vessels  have  been  fitted  out  and 

*  Higgins,  "Peace  Conferences,"  p.  452. 

'T.  J.  Lawrence,  "Principles,"  etc.,  4th  ed.,  par.  189. 


466  BELLIGERENTS  AND  NEUTRALS 

armed,  or  have  increased  their  force,  in  violation  of  the  neutral- 
ity of  the  United  States,  the  courts  of  the  United  States  will 
intervene  to  effect  a  restitution  of  prize  captured  by  such 
vessels,  not  because  the  capture  is  illegal  as  between  captor 
and  the  former  owner,  but  because  the  neutral  state  has  the 
right  to  vindicate  its  own  sovereignty  by  divesting  possession 
of  property  acquired  as  the  result  of  a  violation  of  its  sover- 
eignty."^ 

Kent  says  that  "the  prize-court  of  an  ally  cannot  condemn. 
Prize  or  no  prize  is  a  question  belonging  exclusively  to  the 
courts  of  the  country  of  the  captor."* 

Secretary  Bayard  wrote  in  1885  that  "neutral  passengers, 
in  such  a  case  (capture  at  sea  of  a  passenger  steamer),  like  neu- 
tral goods  not  contraband  of  war,  found  on  board  a  belligerent 
vessel  are  exempt  from  the  jurisdiction  of  any  prize-court 
before  which  the  vessel  when  captured  might  be  taken.  The 
captor  would  be  under  no  obligation  to  transport  either  passen- 
gers or  goods,  being  neutral,  to  any  other  port  of  debarkation 
than  that  where  a  competent  prize-court  may  sit."^ 

204.  Intemational  Prize-Ccurt.  The  second  Hague  con- 
ference of  1907  formulated  Convention  XIII,  which  has  been 
referred  to  for  the  purpose  of  establishing  an  international 
court  of  appeal  from  the  national  prize  tribunals.  "The  ob- 
jections to  the  present  system  of  national  prize-courts  are  that 
the  captor  is  both  judge  and  party  in  his  own  cause,  with  a 
natural  leaning  in  favor  of  his  own  side,  and  that,  though  nom- 
inally administering  international  law,  they  are  dominated  by 
the  laws  of  their  own  country.  These  considerations  do  not 
appear  so  striking  in  the  case  of  captures  from  an  enemy  as 
when  neutral  property  is  concerned,  and  various  proposals  from 
the  time  of  Hiibner,  a  Danish  publicist,  in  1759,  have  been 
made  for  a  reform  in  prize-court  procedure."*  This  matter 
became  a  subject  for  discussion  and  formulating  in  the  second 

*  Fenwick,  "Neutrality  Laws,"  p.  90. 
'Kent,  "Commentaries,"  1031. 
»  Moore,  "Digest  of  Int.  Law,"  vol.  VII,  p.  590. 
*Higgin8,  "Hague  Conferences,"  pp.  431-2- 


TRANSFER  OF  FLAG  467 

Hague  convention,  resulting  in  Convention  XII  for  the  estab- 
lishment of  an  international  prize-court,  which  has  been,  as 
previously  mentioned,  ratified  by  the  United  States. 

This  convention  will  be  found,  with  the  additional  protocol 
incorporated  in  it  by  mutual  consent,  in  the  appendix  of  this 
work.  Up  to  the  present  time  it  has  been  accepted  and  rati- 
fied only  by  the  United  States.  The  question  of  the  composi- 
tion of  the  court  was  a  matter  of  much  dispute  both  from  the 
smaller  states  and  from  those  states  which  were  not  in  accord 
with  continental  views  upon  maritime  international  law.  With 
the  exception  of  Great  Britain,  the  United  States,  and  possibly 
Japan,  out  of  the  eight  permanent  judges  the  other  permanent 
judges  are  from  continental  European  states  and  presumably 
favoring  that  school  of  public  law.  The  other  seven  judges 
which  make  up  the  fifteen  required  for  the  full  bench  are  drawn 
by  rotation  and  lot  in  accordance  with  a  table  and  methods  ar- 
ranged for  in  the  convention.  Besides  the  doubtful  legality 
of  an  appeal  from  the  United  States  Supreme  Court,  there  was 
a  question  of  importance  to  the  United  States,  Great  Britain, 
and  some  other  powers  as  to  the  laws  and  usages  to  be  observed 
in  the  decisions  of  the  court. 

Article  7  provided  that: 

"  If  a  question  of  law  to  be  decided  is  covered  by  a  treaty  in 
force  between  the  belligerent  captor  and  a  power  which  is 
itself,  or  whose  national  is,  a  party  to  the  proceedings,  the  court 
is  governed  by  the  provisions  of  said  treaty. 

"In  the  absence  of  such  provisions  the  court  shall  apply 
the  rules  of  international  law.  If  no  generally  recognized  rule 
exists,  the  court  shall  give  judgment  in  accordance  with  the 
general  principles  of  justice  and  equity."^ 

The  first  clause  just  given  brings  into  operation  the  various 
conventions  of  The  Hague  conference  relating  to  subjects 
likely  to  be  brought  before  an  international  prize-court. 

The  declaration  of  London  gives  a  very  illuminating  and 
valuable  code  to  meet  the  second  clause,  leaving  a  very  few  but 
•  Higgins,  "Hague  Conferences,"  pp.  410,  411. 


468  BELLIGERENTS  AND  NEUTRALS 

nevertheless  important  matters  to  be  left  to  the  general  prin- 
ciples of  justice  and  equity.  The  additional  protocol  urged 
upon  the  signatories  of  the  declaration  of  London  by  the 
United  States  has  been  incorporated  in  this  convention  as 
mentioned,  the  matter  having  been  initiated  in  the  wish  {vceu) 
of  the  declaration  of  London.  There  is  no  doubt  that  the  dual 
system  of  jurisprudence  now  embodied  in  the  international 
prize  convention  entails  disadvantages,  but  it  is  hoped  notwith- 
standing that  the  convention  and  court  will  be  put  into  opera- 
tion, and  defects  and  omissions  can  be  remedied  in  the  light 
of  experience. 

205.  Compensation  for  Capture  When  Found  Void. — ^The 
article  of  the  declaration  of  London  treating  of  this  subject 
states  as  follows: 

"If  the  capture  of  a  vessel  or  of  goods  is  not  upheld  by  the 
prize-court,  or  if  the  prize  is  released  without  any  judgment 
being  given,  the  parties  interested  have  the  right  to  compensa- 
tion, unless  there  were  good  reasons  for  capturing  the  vessel 
or  goods."  ^ 

The  accompanying  report  on  this  subject  says: 

"A  cruiser  has  captured  a  neutral  vessel  on  the  ground,  for 
example,  of  carriage  of  contraband  or  breach  of  blockade. 
The  prize-court  releases  the  vessel,  declaring  the  capture  to  be 
void.  This  decision  alone  is  evidently  not  enough  to  indemnify 
the  parties  interested  for  the  loss  incurred  in  consequence  of 
the  capture,  and  this  loss  may  have  been  considerable,  since  the 
vessel  has  been  during  a  period,  which  may  often  be  a  very 
long  one,  prevented  from  engaging  in  her  ordinary  trade. 
May  these  parties  claim  to  be  compensated  for  this  injury? 
Reason  requires  that  the  affirmative  answer  should  be  given, 
if  the  injury  has  been  undeserved,  that  is  to  say,  if  the  capture 
was  not  brought  about  by  some  fault  of  the  parties.  It  may, 
indeed,  happen  that  there  was  good  reason  for  the  capture, 
because  the  master  of  the  vessel  searched  did  not  produce  evi- 
*  Declaration  of  London,  Art.  64,  Appendix  IV. 


TRANSFER  OF  FLAG  469 

dence  which  ought  in  the  ordinary  course  to  have  been  availa- 
ble, and  which  was  only  furnished  at  a  later  stage.  In  such  a 
case  it  would  be  unjust  that  compensation  should  be  awarded. 
On  the  other  hand,  if  the  cruiser  has  really  been  at  fault,  if 
the  vessel  has  been  captured  when  there  were  not  good  reasons 
for  doing  so,  it  is  just  that  compensation  should  be  granted.  .  .  . 

"For  the  sake  of  simplicity  mention  has  only  been  made 
of  the  vessel,  but  what  has  been  said  applies  of  course  to  cargo 
captured  and  afterward  released.  Innocent  goods  on  board  a 
vessel  which  has  been  captured  suffer,  in  the  same  way,  all  the 
inconvenience  which  attends  the  capture  of  the  vessel;  but  if 
there  was  good  cause  for  capturing  the  vessel,  whether  the  cap- 
ture has  subsequently  been  held  to  be  valid  or  not,  the  owners 
of  the  cargo  have  no  right  to  compensation."^ 

"Prize-courts  properly  deny  damages  or  costs  where  there 
has  been  probable  cause  for  seizure.  Probable  cause  exists 
where  there  are  circumstances  sufficient  to  warrant  suspicion 
though  not  sufficient  to  warrant  condemnation. "^ 

"A  captor  may,  under  imperative  circumstances,  sell  the 
captured  property  and  subject  the  proceeds  to  the  adjudication 
of  a  court  of  prize.  The  orders  of  the  commander-in-chief  not 
to  weaken  his  force  by  detaching  an  officer  and  crew  for  the 
prize,  or  his  own  deliberate  and  honest  judgment,  exercised 
with  reference  to  all  the  circumstances,  that  the  public  service 
does  not  permit  him  to  make  such  detachment,  will  excuse  the 
captor  from  sending  in  his  prize  for  adjudication.  But  if  no 
sufficient  cause  is  shown  to  justify  the  sale,  or  if  the  captor 
has  unreasonably  neglected  to  bring  the  question  of  prize  or 
no  prize  to  an  adjudication,  the  court  may  refuse  to  proceed 
to  an  adjudication  and  may  award  restitution.,  with  or  without 
damages,  upon  the  ground  of  forfeiture  of  rights  by  the  captor, 
although  his  seizure  was  originally  lawful."^ 

*  Report  accompanying  declaration  of  London,  Appendix  IV. 
•The  Thompson  (3  Wail,  p.  155). 

•  Jecker  v.  Montgomery  (13  How.,  p.  498). 


470  BELLIGERENTS  AND  NEUTRALS 


TOPICS  AND  REFERENCES 

1.  Transfer  to  a  Neutral  Flag — 

Declaration  of  London  and  accompanying  report,  Appendix  IV. 
Moore's  "Digest,"  vol.  VII,  415-425.  Naval  War  CoUege,  "In- 
ternational Law  Topics,"  1909,  123,  etc. 

2.  Enemy  Character — 

Naval  War  College,  "International  Law  Topics,"  1906,  22-24; 
1910,  108,  etc.  Moore's  "Digest,"  vol.  VII,  pars.  1189-94. 
Oppenheim,  vol.  II,  2d  ed.,  106-121. 

3.  The  Sending  in  of  Prizes  for  Adjudication — 

Hershey,  "Essentials,"  etc.,  13.  Scott's  "Cases,"  899-933.  Wil- 
son, chap.  XXVIII.  Dana's  "Wheaton,"  2d  ed.,  note  186; 
450,  etc. 

4.  Jurisdiction  of  National  Prize  Tribunals — 

Scott's  "Cases,"  701-5.  Moore's  "Digest,"  vol.  VII,  pars.  1232, 
etc.     Phillimore,  vol.  Ill,  par.  481. 

6.  The  International  Prize-Court — 

Higgins,  "Hague  Conferences,"  Convention  XII,  407-444.  Law- 
rence, "Principles,"  4th  ed.,  par.  192.  George  C.  Butte,  "The 
Protocol  Additional,"  A.  J.  I.  L.,  vol.  VI,  no.  44,  799,  etc. 

6.  Compensation  for  Capture  When  Found  Void — 

Declaration  of  London  and  accompanying  report.  Appendix  IV. 
Moore's  "Digest,"  vol.  VII,  593-8.  Oppenheim,  2d  ed.,  vol.  II, 
555,  557. 


CHAPTER  XXIX 

OPEN  AND  UNSETTLED  QUESTIONS  IN  MARITIME 

WARFARE 

206.  A  General  Discussion  of  Unsettled  Questions  in  Mari- 
time Warfare. — There  are  a  number  of  questions  that  are  dis- 
cussed with  respect  to  maritime  warfare  that  may  be  con- 
sidered open  to  discussion,  so  far  as  the  principles  are  considered, 
and  are  hence  more  or  less  unsettled  as  to  actual  practice  from 
a  want  of  common  agreement.  If  this  agreement  is  lacking, 
practically  each  state  is  a  law  to  itself  in  the  policy  pursued 
during  a  war.  There  may  be,  however,  a  common  practice 
modified  by  treaty  with  one  or  more  powers  which  is  binding 
when  the  signatory  parties  are  at  war  with  each  other;  the 
treaty  is  not  necessarily  binding,  and  in  most  cases  it  is  so 
stated  in  the  treaty,  if  a  signatory  power  is  at  war  with  a  non- 
signatory  power. 

The  declaration  of  Paris  is  generally  and  formally  accepted, 
but  the  United  States  has  not  adhered  to  it  as  a  signatory 
adherent,  though  it  has  followed  it  in  principle  in  the  wars 
that  it  has  engaged  in  since  its  formulation.  So  far  no  power 
signatory  to  the  declaration  has  been  at  war  with  the  United 
States.  From  the  tenets  of  international  law,  as  well  as  from 
the  declaration  itself,  any  signatory  power  is  absolved  from 
carrying  out  the  rules  of  the  declaration  of  Paris  in  any  war 
which  it  should  engage  in  with  the  United  States.  It  does  not 
seem  wise  for  the  United  States  under  the  circumstances  to 
delay  any  further  in  adhering  to  the  declaration  of  Paris,  in 
fact  as  well  as  in  principle — its  non-adherence  serves  no  good 

471 


472  BELLIGERENTS  AND  NEUTRALS 

purpose  and  cannot,  in  view  of  the  fact  of  the  general  adop- 
tion of  the  declaration,  secure  any  advantage  to  the  United 
States  by  its  delay  in  the  formal  acceptance  of  the  instrument 
itself.  Privateering  is  a  thing  of  the  past  for  all  the  world, 
including  the  United  States. 

Another  matter  that  may  be  mentioned  in  a  general  way  is 
the  question  upon  which  we  based  our  refusal  to  sign  the 
declaration  of  Paris,  namely,  the  immunity  from  capture  in 
war  of  private  property  at  sea.  The  practice  of  this  capture 
is  almost  universal;  it  includes  among  those  who  exercise  this 
belligerent  right  the  United  States  itself  except  where  it  is 
otherwise  held  in  accordance  with  treaty.  The  only  war  of 
late  in  which  such  capture  was  not  made  was  that  between 
Prussia  and  Austria,  which  included  also  Italy,  in  1866.  This 
abstention  arose  out  of  the  declaration  of  Austria  and  Prussia 
at  the  outbreak  of  the  war  that  enemy's  ships  and  cargoes 
should  not  be  captured  so  long  as  the  enemy  state  granted  a 
like  indulgence.^  The  Prussian  Government  issued  an  or- 
dinance in  1870  exempting  French  vessels  from  capture  which 
was  not  reciprocated  by  France,  and  hence  was  not  carried  into 
effect  by  either  belligerent. 

The  United  States  by  treaty  with  Prussia,  of  September  10, 
1785,  and  by  treaty  with  Italy,  of  February  26, 1871,  provided 
for  the  mutual  exemption  of  privately  owned  vessels  from  cap- 
ture in  case  of  war.  This  subject  of  immunity  was  brought 
before  the  two  Hague  conferences  by  the  United  States,  but 
without  ultimate  success.  The  best  method  in  attaining  such 
result  will  probably  be  by  gradual  increase  of  exemptions  of 
certain  classes  of  vessels. 

Other  matters,  some  of  which  will  be  discussed  separately 
as  questions  unsettled  as  to  principle  and  common  practice  are 
those  of  the  duration  of  days  of  grace,  etc.,  at  the  outbreak  of 
war,  that  of  domicile  or  nationality  as  a  governing  factor  in 
the  determination  of  the  enemy  character  of  ships  and  cargoes, 
» HaU,  "Int.  Law,"  6th  ed.,  pp.  438,  439. 


OPEN  QUESTIONS  IN  MARITIME  WARFARE         473 

the  conversion  of  merchantmen  into  ships  of  war  on  the  high 
seas  and  neutral  ports,  the  use  of  floating  mines  in  war  time  on 
the  high  seas,  the  opening  by  belligerents  to  neutrals  of  trade 
closed  in  time  of  peace,  the  use  of  projectiles  and  explosives 
from  balloons,  and  the  use  and  status  of  submarine  cables  in 
war  time. 

207.  Days  of  Grace  at  the  Outbreak  of  War. — The  con- 
vention (VI)  of  the  Hague  conference  of  1907  treating  upon 
this  subject  was  so  unsatisfactory  to  the  American  delegation 
that  they  declined  to  sign  it,  and  consequently  it  was  not  sub- 
mitted to  the  United  States  Senate  for  ratification.  The  reason 
given  for  this  procedure  was  "based  on  the  ground  that  the 
convention  is  an  unsatisfactory  compromise  between  those  who 
believe  in  the  existence  of  a  right  and  those  who  refuse  to 
recognize  the  legal  validity  of  the  custom  which  has  grown  up 
in  recent  years."  ^ 

The  first  article  of  this  convention  provides  that  "  when  a 
merchant  ship  of  one  of  the  belligerent  powers  is  at  the  com- 
mencement of  hostilities  in  an  enemy  port,  it  is  desirable  that 
it  should  be  allowed  to  depart  freely,  either  immediately  or 
after  a  sufficient  term  of  grace,  and  to  proceed  direct,  after 
being  furnished  with  a  passport,  to  its  port  of  destination  or 
such  other  port  as  shall  be  named  by  it. 

"The  same  applies  in  the  case  of  a  ship  which  left  its  last  port 
of  departure  before  the  commencement  of  the  war  and  enters 
an  enemy  port  in  ignorance  of  hostilities."^ 

As  this  is  only  a  pious  wish,  it  does  not  require  any  action  of 
favor  or  grace  from  any  of  the  belligerents,  and  seizure  in  port 
of  an  enemy  vessel  can  be  made  immediately  upon  the  out- 
break of  war.  The  article  is  not  as  liberal  as  the  practice  has 
been  in  the  past. 

The  policy  of  the  United  States  in  such  matters  was  shown 
in  the  Spanish-American  War  in  the  rules  laid  down  by  the  Presi- 

'  Higgins,  "Hague  Conferences,"  p.  307. 
'Higgins,  "Hague  Conferences,"  p.  295. 


474  BELLIGERENTS  AND  NEUTRALS 

dent  in  his  proclamation  of  April  26,  1898,  the  fourth  article 
of  which  reads  as  follows: 

"  Article  4.  Spanish  merchant  vessels,  in  any  ports  or  places 
within  the  United  States,  shall  be  allowed  till  May  21,  1898, 
inclusive,  for  loading  their  cargoes  and  departing  from  such 
ports  or  places;  and  such  Spanish  merchant  vessels,  if  met  at 
sea,  by  any  United  States  ship,  shall  be  permitted  to  continue 
their  voyage,  if,  on  examination  of  their  papers,  it  shall  appear 
that  their  cargoes  were  taken  on  board  before  the  expiration 
of  the  above  term:  Provided,  that  nothing  herein  contained 
shall  apply  to  Spanish  vessels  having  on  board  any  officer  in 
the  military  or  naval  service  of  the  enemy,  or  any  coal  (except 
such  as  may  be  necessary  for  their  voyage),  or  any  other  article 
prohibited  or  contraband  of  war,  or  any  despatches  of  or  to 
the  Spanish  Government."^ 

This  rule  is  an  extremely  liberal  one  and  it  is  doubtful  whether 
it  would  be  generally  accepted,  especially  in  the  case  of  states 
of  Europe  where  quick  mobilization  maintains  as  a  rule. 

2o8.  The  Question  of  Domicile  or  Nationality  as  the  De- 
termining Factor  in  Maritime  Capture. — This  question  shows 
the  diverging  views  of  what  has  been  roughly  stated  as  the 
views  of  the  Anglo-American  versus  the  continental  schools  or 
doctrine.  It  is  a  matter  of  regret  that  it  was  not  decided  by 
the  declaration  of  London  upon  one  basis  or  the  other,  but  the 
London  conference  was  evenly  divided  upon  the  subject,  show- 
ing that  it  was  no  longer  a  question  confined  to  the  states  hold- 
ing the  classification  or  doctrines  just  mentioned.  Five  of  the 
powers  represented  favored  the  principle  of  domicile  of  the 
proprietor  as  the  criterion  of  character  of  the  goods  found  in 
an  enemy  vessel  and  five  favored  the  nationality  of  the  owner 
as  deciding  the  matter.  The  former  represented  the  old 
Anglo-American  doctrine,  the  latter  that  of  the  continental 
states.  So  far  as  ships  are  concerned  it  was  agreed  that  the 
flag  determines  the  character  of  the  vessel  without  regard  to 
1  Moore's  "Digest,"  vol.  VII,  p.  454. 


OPEN  QUESTIONS  IN  MARITIME  WARFARE         475 

the  character  of  the  individual  owner,  but  as  to  the  cargoes  the 
above  difference  was  developed. 

"The  Anglo-American  system,"  says  Westlake,  "makes  the 
enemy  or  neutral  character  of  an  individual,  so  far  as  it  is 
important  for  the  purpose  of  maritime  capture,  depend,  not  on 
his  political  nationality,  but  on  his  domicile  in  a  peculiar  sense 
known  as  trade  domicile  in  war.  At  the  same  time  it  upholds 
the  importance  of  the  fact  that  a  house  of  business  is  estab- 
lished in  the  enemy's  country.  Both  these  branches  of  the 
doctrine  are  defended  on  the  ground  that  trade,  whether  in- 
dustrial or  commercial,  is  a  source  of  wealth  and  therefore  of 
strength  to  the  country  in  which  it  is  carried  on,  by  the  money 
spent  there  and  the  liability  of  the  profits  to  taxation."* 

"If  a  person  of  European  or  American  blood  has  a  trade 
domicile  or  a  house  of  business  in  an  Eastern  country  under 
the  protection  of  his  consul,  that  is  considered  as  a  trade 
domicile  or  a  house  of  business  in  his  own  country." ^ 

It  may  be  said  in  behalf  of  the  continental  doctrine  that  the 
criterion  of  nationality  is  one  of  greater  simplicity. 

209.  The  Conversion  of  Merchantmen  into  Vessels  of  War 
upon  the  High  Seas  or  in  Neutral  Waters. — This  is  a  question 
left  unsettled  by  The  Hague  conferences  and  also  by  the  Lon- 
don naval  conference.  Convention  VII  of  the  second  Hague 
conference  on  the  general  subject  of  the  conversion  of  merchant 
ships  into  war-ships  was  not  signed  by  the  American  delegation 
and  hence  not  submitted  to  the  United  States  Senate  for  rati- 
fication. This  convention  involved  the  declaration  of  Paris 
to  such  an  extent  that  the  American  delegation,  in  view  of  the 
non-adherence  on  the  part  of  the  United  States  to  that  declara- 
tion, felt  that  they  could  not  with  propriety  be  a  signatory  to 
the  convention.  In  the  preamble  the  subject  of  the  place  of 
transfer  is  referred  to  as  follows: 

"As,  however,  the  contracting  powers  having  been  unable 
to  come  to  an  agreement  on  the  question  whether  the  conver- 

» Weatlake,  2d  ed.,  vol.  II,  p.  1G4.  »  Dana's  "Wheaton,"  par.  33a 


476  BELLIGERENTS  AND  NEUTRALS 

sion  of  a  merchant  ship  into  a  war-ship  may  take  place  upon 
the  high  seas,  it  is  understood  that  the  question  of  the  place 
where  such  conversion  is  effected  remains  outside  the  scope  of 
this  agreement,  etc." 

In  the  London  naval  conference  the  same  difficulty  of  agree- 
ment obtained.  Great  Britain,  Spain,  Holland,  Japan,  and  the 
United  States  opposed  conversion  upon  the  high  seas  and  fa- 
vored the  conversion  only  in  the  ports  of  the  country  of  the 
belligerent  or  those  under  his  military  occupation.  Germany, 
Russia,  Austria-Hungary,  Italy,  and  France  considered  it  per- 
missible upon  the  high  seas. 

A  conversion  of  a  merchantman  in  neutral  ports  or  waters 
would  be  a  violation  of  neutrality  that  had  been,  in  effect,  more 
than  once  condemned  in  past  usages  and  rules  and  in  the  spirit 
if  not  the  letter  of  the  conventions  of  The  Hague. 

With  the  question  of  conversion  was  also  involved  that  of 
subsequent  reconversion  to  merchantmen  from  men-of-war. 
It  was  generally  admitted  that  a  captured  enemy  merchant 
vessel  could  at  once  be  turned  into  a  vessel  of  war  upon  the 
high  seas.  From  this  fact  it  was  urged  that  the  right  of  con- 
version should  be  extended  upon  the  high  seas  to  a  belligerent 
so  far  as  his  own  ships  were  concerned,  especially  when  at  a 
great  distance  from  his  home  ports,  which  may  also  by  war 
blockade  be  closed  to  him. 

On  the  other  hand,  those  against  the  conversion  of  merchant 
ships  on  the  high  seas  expressed  their  willingness  to  relinquish 
the  right  to  convert  captured  enemy  merchantmen  on  the  high 
seas  and  claimed  that  ships  known  to  belong  to  regular  mer- 
cantile lines  might  sail  as  innocent  merchant  vessels,  then  sud- 
denly throw  off  their  peaceful  character  on  the  high  seas  and 
search  and  perhaps  capture  neutral  merchantmen  while  in  their 
company.  On  the  other  hand,  they  might  voyage  from  one 
neutral  port  to  another,  receiving  the  treatment  of  merchant- 
men, running  in  to  avoid  capture,  remaining  in  port  indefinitely, 
taking  in  frequent  and  unlimited  supplies  of  all  kinds,  and  then 


OPEN  QUESTIONS  IN  MARITIME  WARFARE         477 

suddenly  assuming  at  sea  the  belligerent  character  with  its 
consequent  activities. 

The  Italian  proposition  for  a  compromise  seems  to  hold  out 
the  best  hopes  of  agreement.  It  is  to  the  effect  that  conversion 
on  the  high  seas  should  be  limited  only  to  ships  which  left  their 
last  neutral  port  of  departure,  or  their  last  national  port,  before 
the  commencement  of  hostilities. 

In  the  meantime  every  country  is  free  to  do  what  it  pleases 
in  this  matter  on  the  high  seas,  but  a  conversion  in  a  neutral 
port  is  manifestly  a  violation  of  neutrality  which  should  be 
prohibited  by  the  neutral  state. 

210.    The  Use  of  Floating  Mines  on  the  High  Seas. — The 

Hague  conference  of  1907  left  this  subject  in  an  unsatisfactory 
condition.  There  is  nothing  in  the  convention  treating  of  the 
subject  prohibiting  the  use  and  laying  of  mines  on  the  high 
seas.  The  British  delegation  on  signing  the  convention  upon 
the  subject  made  the  reservation  that,  although  the  action  was 
of  a  negative  character,  they  considered  the  fact  that  a  pro- 
ceeding not  under  prohibition  is  not  to  be  considered  as  re- 
cognized as  being  legally  permissible.^ 

Higgins  in  treating  of  the  subject  said  that  "the  officers 
and  crew  of  a  merchant  ship  which  was  converted  into  a  mine 
layer  on  the  high  seas,  after  having  enjoyed  the  security  of 
neutral  ports  till  she  could  safely  sally  forth  to  lay  a  mine- 
field on  some  parts  of  the  ocean  to  be  traversed  by  a  portion  of 
the  enemy's  fleet,  would,  if  subsequently  captured  by  one  of 
the  enemy's  cruisers,  incur  the  very  probable  risk  of  finding 
themselves  dealt  with  as  illegitimate  combatants." ^  Recent 
experience  shows  that  the  probability  would  be  an  instant 
sinking  of  the  mine  layer,  especially  if  caught  in  the  act. 

Since  The  Hague  convention  (VIII)  which  forbids  the  laying 
of  automatic  contact  mines  off  the  coasts  and  ports  of  the 
enemy,  with  the  sole  object  of  intercepting  commercial  ship- 

*  Higgins,  "War  and  the  Private  Citizen,"  p.  163. 

*  Higgins,  "War  and  the  Private  Citizen,"  p.  164. 


478  BELLIGERENTS  AND  NEUTRALS 

ping,  and  also  restricts  the  nature  of  the  mines  used  against 
the  enemy,  opinion  has  become  more  and  more  opposed  to 
either  blockading  a  port  by  mines  or  their  general  use  in  waters 
outside  of  those  within  the  area  of  siege  operations.  Germany 
made  a  reservation  as  to  this  article  and  cannot  be  consid- 
ered as  bound  by  it. 

By  this  Hague  convention  it  is  not  only  "forbidden  to  lay 
unanchored  automatic  contact  mines,  except  where  they  are  so 
constructed  as  to  become  harmless  one  hour  at  most  after 
those  who  laid  them  have  lost  control  of  them,"  but: 

"The  belligerents  undertake  to  provide,  as  far  as  possible, 
fchat  these  mines  shall  become  harmless  within  a  limited  time, 
and  should  they  cease  to  be  under  surveillance  to  notify  the 
danger  zones  as  soon  as  military  exigencies  permit  by  a  notice 
to  mariners  which  must  be  communicated  to  the  governments 
through  the  diplomatic  channels."  ^ 

The  statement  made  by  the  Chinese  delegation  in  regard  to 
the  mines  used  in  the  Russo-Japanese  War  is  worthy  of  repeti- 
tion: 

"The  Chinese  Government  is  even  to-day  obliged  to  furnish 
vessels  engaged  in  coastal  navigation  with  special  apparatus 
to  raise  and  destroy  floating  mines  which  are  found  not  only 
on  the  open  sea  but  even  in  its  territorial  waters.  In  spite  of 
the  precautions  which  have  been  taken,  a  very  considerable 
number  of  coasting  vessels,  fishing-boats,  junks,  and  sampans 
have  been  lost  with  all  hands,  without  the  details  of  these 
disasters  being  known  to  the  Western  world.  It  is  calculated 
from  five  to  six  hundred  of  our  countrymen  engaged  in  their 
peaceful  occupations  have  there  met  a  cruel  death  in  conse- 
quence of  these  dangerous  engines  of  war."  ^ 

The  opening  to  neutrals  of  trade  closed  in  peace  has  been 
discussed  in  a  preceding  chapter.  As  it  has  been  left  an  open 
question,  those  powers  favoring  the  revival  of  the  rule  of  1756 


*  Higgins,  "Hague  Conferences,"  p.  324. 
'  Higgina,  "Hague  Conferences,"  p.  329. 


OPEN  QUESTIONS  IN  MARITIME  WARFARE         479 

will,  in  all  probability,  capture  neutral  vessels  engaged  in  a 
trade  closed  to  them  in  peace  and  proceed  to  have  them  con- 
demned as  enemy  vessels.  If  the  international  prize-court 
should  be  in  existence  the  matter  will  doubtless  be  referred  to 
it  for  decision  in  accordance  with  equity  and  justice.  Otherwise 
there  is  no  refuge  but  the  universal  agreement  to  exempt  all 
mercantile  shipping  from  capture;  but  even  this  is  subject  to 
the  possibility  of  such  action  by  neutral  vessels  being  construed 
as  unneutral  service. 

The  launching  of  projectiles  and  explosives  from  balloons 
is  prohibited  until  the  end  of  the  next  Hague  conference  to  the 
signatory  powers  which  have  accepted  The  Hague  declaration 
upon  the  subject.  But  seventeen  states  refused  to  sign  this 
declaration  and  retain  the  right  to  make  use  of  this  method  of 
warfare  against  such  places  as  are  defended.  Among  these 
are  Germany,  France,  Italy,  Japan,  Russia,  Spain,  Servia, 
Montenegro,  and  Rumania.  Great  Britain,  Belgium,  Austria- 
Hungary,  and  the  United  States  are  signatory  states  to  the 
declaration,  but  are  not  bound  in  their  action  in  case  of  war 
with  non-signatory  powers. 

The  question  of  the  treatment  of  submarine  cables  in  time 
of  war  has  been  discussed  elsewhere.  There  has  been  no  gen- 
eral convention  upon  the  subject,  but  it  is  hoped  that  the  rules 
adopted  in  the  Naval  War  Code  of  1900  may  be  followed  in 
common  practice. 

TOPICS  AND  REFERENCES 

1.  General  Discussion  of  Open  and  Unsettled  Questions  in  Maritime 

Warfare — 

Westlake,  2d  ed.,  vol.  II,  chap.  XI.     Higgins,  "Hague  Conferences," 

1-4.     "Capture  at  Sea,"  by  Earl  Ivoreburn,  1913,  18-77,  153- 

174. 

2.  Days  of  Grace  at  the  Outbreak  of  War — 

Higgins,  "War  and  the  Private  Citizen,"  28-30.     Higgins,  "Hague 
Peace  Conferences."  294-307.     Hall,  6th  ed.,  447-8. 


480  BELLIGERENTS  AND  NEUTRALS 

3.  The  Question  of  Domicile  or  Nationality  as  Determining  Factor  in 

Maritime  Capture — 

Moore's  "Digest,"  vol.  VII,  424-434.  Oppenheim,  2d  ed.,  vol.  II, 
115-117.     Hershey,  "Essentials,"  443-5  and  notes. 

4.  Conversion  of  Merchantmen  into  Vessels  of  War  upon  the  High  Seas 

and  in  Neutral  Ports — 

Higgins,  "Hague  Peace  Conferences,"  308-321.  Naval  War  Col- 
lege, "Topics,"  etc.,  1913,  148-153.  Higgins,  "War  and  the 
Private  Citizen,"  113-165. 

5.  The  Use  of  Floating  Mines  on  the  High  Seas  and  Friendly  Waters — 

Higgins,  "Hague  Peace  Conferences,"  322-354.  Naval  War  Col- 
lege, "Topics,"  etc.,  1908,  98-113.  Westlake,  2d  ed.,  vol.  II, 
312-317. 


LIST  OF  AUTHORITIES  CONSULTED 

WITH  ABBREVIATIONS   IN   PARENTHESIS 

American  Journal  of  International  Law  (A.  J.  I.  L.). 
"American  State  Papers — Foreign  Relations." 
"Annualre  de  I'lnstitut  de  droit  international"  (Annuaire). 
Atherly-Jones,  L.  A.:  "Commerce  in  War,"  1907. 

Baty,  T.:  "International  Law,"  London,  1909. 

Bentwich,  Norman:  "Law  of  Private  Property  in  War,"  London,  1907. 

"The  Declaration  of  London,"  London,  1911. 
Bernard,  M.:  "Four  Lectures  on  Diplomacy,"  London,  1868. 
Blackstone,  Sir  W. ;  "Commentaries  on  the  Laws  of  England." 
Bluntschli,  J.  K.:  "Le  droit  international  codifie,"  Paris,  1895. 

"       "Das  moderne  Volkerrecht,"  1868  (Bluntschli). 

"       "Le  congrfes  de  Berlin." 
Bonfils:  "Manuel  de  droit  international  public,"  6th  ed.,  Paris,  1911. 
Bowles,  T.  G.:  "The  Declaration  of  Paris  of  1856,"  London,  1900. 

"Sea  Law  and  Sea  Power." 
Brightley:  "Digest  of  Laws." 
"British  and  Foreign  State  Papers." 

Burnell  and  Hopkins:  "Ordinances  of  Manu,"  London,  1891. 
Butler,  C.  H.:  "Treaty  Making  of  the  United  States,"  2  volumes,  1902. 

Calvo,  C:  "Le  droit  international  thSorique  et  pratique,"  in  6  volumes, 

5th  ed.,  Paris,  1896  (Calvo). 
Chadwick,  F.  E.,  Admiral:  "The  Relations  of  the  United  States  and  Spain, 

Diplomacy  of,"  New  York,  1909. 
"Compilation  of  Treaties  of  the  United  States  in  Force,"  1904. 
Constitution  of  the  United  States. 

Consular  Regulations  of  the  United  States,  Washington,  1896. 
Coolidge,  A.  C:  "The  United  States  as  a  World  Power,"  New  York,  1908. 
Crandall,  S.  B.:  "Treaties,  Their  Making  and  Enforcement,"  New  York, 

1904. 
Curzon,  G.  N.  C,  Lord:  "Frontiers,"  Oxford,  1907  (Lord  Curzon). 

Dana,  Richard  Henry.     See  8th  edition  of  Wheaton. 

Davis,  George  B.,  General:  "The  Elements  of  International  Law,"  3d  ed.. 

New  York,  1907  (Davis,  "Int.  Law"). 
"Diplomatic  Instructions  of  the  United  States." 

481 


482  LIST  OF  AUTHORITIES  CONSULTED 

Ellis,  Wilmot  E. :  "Aerial  Land  and  Aerial  Maritime  Warfare,"  A.J.I.  L., 

April,  1914. 
"Encyclopaedia  Britannica,"  11th  ed.,  Cambridge,  England,  1910-11  (En- 

cycl.  Brit.). 

Fanchilli:  "De  Blocus  Maritime,"  Paris,  1882. 

Fenwick,  Charles  G.:  "The  Neutrality  Laws  of  the  United  States," 
Washington,  1913. 

Ferguson,  J.  H.:  "Manual  of  International  Law,"  in  2  volumes.  Hong 
Kong,  1884-5  (Ferguson). 

Field,  David  Dudley:  "Outlines  of  an  International  Code,"  2d  ed..  New 
York,  1876. 

Fiore,  P.:  "Le  droit  international  codifi^  et  sa  sanction  juridique,"  trans- 
lated in  French  from  the  Italian,  Paris,  1911. 

"Foreign  Relations  of  the  United  States,  1776-1876,"  Washington. 

Foster,  John  W.:  "The  Practice  of  Diplomacy,"  1906. 

Fyffe,  C.  A.:  "A  History  of  Modern  Europe,"  in  3  volumes.  New  York, 
1881,  1890. 

"Geneva  Arbitration,"  1871. 

Geneva  Conventions  of  1864-1906.  See  Higgins,  "Hague  Peace  Con- 
ferences." 

Grotius,  Hugo,  translation  by  Whewell,  in  3  volumes,  Cambridge,  1853 
(Grotius). 

Hague  Conventions  of  1899  and  1907,  in  Higgins,  "Hague  Peace  Confeiw 

ences." 
Hall,  W.  E.:  "A  Treatise  on  International  Law,"  Oxford,  6th  ed.  by  J. 
B.  Atley,  1909  (Hall,  "Int.  Law"). 
"         "        "Foreign  Powers  and  Jurisdictions  of  the  British  Crown," 
4th  ed.,  Oxford,  1895. 
Halleck,  General  H.  W.:  "International  Law,"  in  2  volumes,  3d  ed.  by 

Baker,  London,  1893  (Halleck,  3d  ed..  Baker). 
Harcourt,  Sir  William:  "Letters  of  Historicus  on  Some  Questions  of  In- 
ternational Law,"  London,  1863  (Historicus). 
Harris,  Thomas  L.:  "The  Trent  Affair,"  Indianapolis,  1896. 
Hazeltine:  "Law  of  the  Air,"  1911. 
Hazen,  C.  D.:  "Europe  since  1815,"  New  York,  1910. 
Hershey,  A.  S.:   "The  International  Law  and  Diplomacy  of  the  Russo- 
Japanese  War,"  New  York  and  London,  1906  (Her- 
shey's  "Russo-Japanese  War"). 
"  "         "The  Essentials  of  International  Public  Law,"    New 

York,  1912  (Hershey,  "Essentials"). 
Hertslet,  Sir  Edward:  "Map  of  Europe  by  Treaty  since  1814,"   London 
(Hertalet). 


LIST  OF  AUTHORITIES  CONSULTED  483 

Higgins,  A.  P.:  "The  Hague  Peace  Conferences,"  etc.,  Cambridge,  1909 
(Higgins,  "Hague  Conferences"). 
'The  Binding  Force  of  International  Law." 
'War  and  the  Private  Citizen,"  London,  1912. 
Hill,  David  J.:   "A  History  of  Diplomacy,"  etc.,  in  2  volumes.  New  York 

and  London,  1905-6. 
Holland,  T.  E.:  "The  Laws  of  War,  Written  and  Unwritten." 

"       "Manual  of  Prize  Law." 
Hosack,  J.:  "On  the  Rise  and  Growth  of  the  Law  of  Nations,"  London, 

1892. 
Hunt,  Gaillard:  "The  American  Passport,"  Washington,  1898. 

"The  History  of  the  Department  of  State,"  Yale  Uni- 
versity Press,  1914. 

"Instructions  for  the  Government  of  the  Armies  of  the  United  States  in 
the  Field  "  (18p3),  by  Francis  Lieber,  Appendix,  Davis,  "International 
Law,"  3d  ed. 

"Instructions  to  the  Diplomatic  Officers  of  the  United  States,"  1897. 

Journals  of  the  United  States  House  of  Representatives. 

Kent,  James:  "Commentary  on  International  Law,"  2d  ed.,  Cambridge 
and  London,  1878  (Kent,  "Com."). 

Lampredi,  quoted  by  (Historicus). 

Lanfrey,  Pierre:  "The  History  of  Napoleon  the  First,"  in  4  volumes,  New 

York,  1894. 
Laurent,  F. :  "Etudes  sur  I'histoire  de  I'humanit^,"  in  IS  volumes,  Paris, 

1865-80  (Laurent's  "Etudes"). 
Lawrence,  Thomas  J.:  "Essays  on  Some  Disputed  Questions  of  Interna- 
tional Law"  (Lawrence's  "Essays"). 
"  "  "Principles  of  International  Law,"  4th  ed.,  1911 

(Lawrence's  "Principles"). 
"  "  "International  Problems  and  Hague  Conferences," 

London, 1908. 
"  "  "War  and  Neutrality  in  the  East,"  2d  ed..  New 

York,  1904. 
Lee,  Blewett:  "Sovereignty  of  the  Air,"  A.  J.  I.  L.,  July,  1913. 
Lieber,  Francis:  "Instructions,"  etc.     See  Instructions. 
Lorimer,  James:   "The  Institutes  of  the  Law  of  Nations,"  in  2  volumes, 

Edinburgh  and  London,  1883-6. 
Lushington,  G.:  "Manual  of  Prize  Law." 

Machiavelli,  Niccolo:  "II  Principe,"  ed.  by  L.  A.  Burd,  Oxford,  1891. 
Mahan,  A.  T.,  Admiral:  "The   Influence  of  Sea  Power  upon   History/' 

Boston,  1892. 


484  LIST  OF  AUTHORITIES  CONSULTED 

Mahan,  A.  T.,  Admiral:  "The  Influence  of  Sea  Power  upon  the  French 

Revolution    and    Empire,"    in   2    volumes, 
Boston,  1892. 
"  "  "  "Some  Neglected  Aspects  of  War,"  Boston,  1907. 

Maine,  Sir  Henry:  "International  Law,"  London,  1888. 
"  "Ancient  Law,"  London,  1906. 

"  "  "Early  History  of  Institutions." 

Manning,  W.  O.:  "Commentaries  on  the  Law  of  Nations,"  new  ed.  by 

Amos,  1875. 
Marquardsen,  H.:    "Balmerincq  in  I  Handbuch  in  Volkerrecht  oder  In- 
ternationales Recht,"  Freiburg,  1884. 
Martens,  F.  de:  "La  paix  et  la  guerre." 

Maurice,  J.  F.,  Colonel:  "Hostilities  Without  Declaration  of  War,"  Lon- 
don, 1883. 
Montesquieu,  Ch.  de,  Baron:  "The  Spirit  of  Laws,"  new  ed.,  in  English, 

Cincinnati,  1886. 
Moore,  John  Bassett:  "A  Digest  of  International  Law,"  in  8  volumes, 

Washington,  1900  (Moore's  "Digest"). 
"  "  "Digest  of  International  Arbitration,"  in  6  vol- 

umes (Moore's  "Int.  Arbitrations"). 

"Naval  Regulations,"  United  States  Navy,  Washington,  1913. 
Naval  War  College:  "International  Law  Situations  and  Topics,"  1900,  etc. 
Nys,  Ernest:  "Le  Droit  International,"  3  volumes,  new  edition,  Brussels, 
1912. 
"         "        "Le  Droit  de  la  guerre  et  les  precurseurs,"  Grotius,  1882. 

Opinions  of  the  Attorneys-General. 

Oppenheim,  L. :  "International  Law,"  2  volumes,  2d  ed.,  London,  1912. 
Ortolan,  Th.:  "Ragles  Internationales  et  diplomatic  de  lamer,"  in  2  vol- 
umes, 4th  ed.,  Paris,  1864. 

Phillimore,  Sir  R.:  "Commentaries  upon  International  Law,"  4  volumes, 

3d  ed.,  London,  1889. 
Proclamation  of  President  Wilson  in  Regard  to  the  European  War  of 

1914. 

Renault,  Louis:  "Introduction  a  I'etude  du  droit  international,"  Paris, 
1869. 
"  "       Report  Accompanying  the  Declaration  of  London,  1909. 

Revised  Statutes  of  the  United  States,  1  volume,  2d  ed.,  1878. 
Richardson,  J.  D. :  "Messages  and  Papers  of  the  Presidents  of  the  United 

States,"  in  10  volumes,  Washington,  1896. 
Risley,  John  S.:  "The  Law  of  War,"  1  volume,  1897. 
Rose,  J.  H.:  "The  Life  of  Napoleon,"  in  2  volumes.  New  York,  1901-2. 


LIST  OF  AUTHORITIES  CONSULTED  485 

Schuyler,  Eugene:  "American  Diplomacy,"  New  York,  1886. 
Scott,  James  Brown:  "Cases  on  International  Law,"  Boston,  1906  (Scott'3 

"Cases"). 
"  "  "        "Texts  of  the  Peace  Conference  at  The  Hague," 

Boston,  1908. 
"  ♦*  "        "The  Hague  Peace  Conferences  of  1899  and  1907," 

in  2  volumes,  Baltimore,  1909. 
Snow,  Freeman:  "Cases  and  Opinions  on  International  Law,"  Boston, 

1893  rSnow's  "Cases"). 
"  "International  Law,"  2d  ed.  by  C.  H.  Stockton,  1898 

(Snow,  "Int.  Law"). 
Spaight,  J.  M.:  "War  Rights  on  Land,"  New  York,  1911. 
Stockton,  C.  H.,  Rear-Admiral:  "The  Laws  and  Usages  of  War  at  Sea," 

1900. 
"  "  "  "A  Manual  of  International  Law  for  Naval 

Officers,"     Annapolis,     1911     (Stockton's 
"Manual  for  Naval  Officers"). 
Stowell,  EUerj'  C:  "Consular  Cases  and  Opinions."  Washington,  1909. 
"Le  Consul,"  Paris,  1909. 

Takahaski,  S.:  "Cases  on  International  Law  During  the  Chino-Japanese 
War,"  Cambridge,  1899. 
"  "     "Cases  on  International  Law  Applied  to  the  Russo-Japa- 

nese War,"  New  York,  1908. 
Taylor,  Hannis:  "A  Treatise  on  International  Public  Law,"  Chicago,  1901. 
Trevelyan,  George  M.:  "The  Life  of  John  Bright,"  New^York  and  Lon- 
don, 1913. 
Twiss,  Travers,  Sir:  "The  Rights  and  Duties  of  Nations  in  Time  of 

Peace,"  Oxford,  1884. 
«'  «         "      "The   Rights   and   Duties  of  Nations  in  Time  of 

War,"  2d  ed.,  Oxford,  1875. 

Vattel,  E.  I.:  "Le  droit  des  gens,"  etc.,  in  3  volumes,  new  ed.,  1863 
(Vattel). 

Walker,  T.  A.:  "A  Manual  of  Public  International  Law,"  Cambridge, 
1895. 
"  "       "The  Science  of  International  Law,"  London,  1893. 

"  "       "A  History  of  the  Law  of  Nations,"  Cambridge,  1899 

(Walker,  "History"). 
Westlake,  John:  "International  Law,"  2  volumes,  2d  ed.,  Cambridge,  1913 

(Westlake,  "Int.  Law"). 
"  "       "Chapters   on   the   Principles   of   International   Law," 

Cambridge,  1894  (Westlake,  "Chapters"). 
Wharton,  Francis:  "A  Digest  of  International  Law,"  in  3  volumes,  Wash- 
ington, 1886  (Wharton's  "Digest"). 


486  LIST  OF  AUTHORITIES  CONSULTED 

Wheaton,  Henry:  "Elements  of  International  Law,"  8th  ed.,  with  notes 

by  R.  H.  Dana,  Boston,  1886  (Dana's  "Wheaton"). 
"  "        "History  of  the  Law  of  Nations  in  Europe  and  America," 

New  York,  1845  (Wheaton's  "History,"  etc.). 
Wilson,  George  G.,  and  Tucker,  G.  F.:  "International  Law,"  5th  ed., 

New  York,  Boston,  etc.,  1910. 
Woolsey,  Theodore  D. :  "Introduction  to  the  Study  of  International  Law," 
6th  ed.,  T.  S.  Woolsey,  New  York,  1908  (Woolsey'a  Int.  Law). 


APPENDIXES 

APPENDIX   I 

THE  RECOGNITION  OF  BELLIGERENCY  AND 
OF  INDEPENDENCE 

Notes  15  and  16  to  the  8th  Edition  of  Wheaton's  "Elements  of 
International  Law,"  by  Mr.  Richard  Henry  Dana,  1S66 

Recognition  of  Belligerency. — The  occasion  for  the  accordance  of  bellig- 
erent rights  arises  when  a  civil  conflict  exists  within  a  foreign  state.  The 
reason  which  requires  and  can  alone  justify  this  step  by  the  government 
of  another  country  is  that  its  own  rights  and  interests  are  so  far  affected 
as  to  require  a  definition  of  its  own  relations  to  the  parties.  Where  a 
parent  government  is  seeking  to  subdue  an  insurrection  by  municipal 
force,  and  the  insurgents  claim  a  political  nationality  and  belligerent 
rights  which  the  parent  government  does  not  concede,  a  recognition  by 
a  foreign  state  of  full  belligerent  rights,  if  not  justified  by  necessity,  is  a 
gratuitous  demonstration  of  moral  support  to  the  rebellion  and  of  censure 
upon  the  parent  government.  But  the  situation  of  a  foreign  state  with 
reference  to  the  contest  and  to  the  condition  of  affairs  between  the  con- 
tending parties  may  be  such  as  to  justify  this  act.  It  is  important,  there- 
fore, to  determine  what  state  of  affairs  and  what  relations  of  the  foreign 
state  justify  the  recognition. 

It  is  certain  that  the  state  of  things  between  the  parent  state  and  in- 
surgents must  amount,  in  fact,  to  a  war,  in  the  sense  of  international  law; 
that  is,  powers  and  rights  of  war  must  be  in  actual  exercise,  otherwise  the 
recognition  is  falsified,  for  the  recognition  is  of  a  fact.  The  tests  to  de- 
termine the  question  are  various  and  far  more  decisive  where  there  is 
maritime  war  and  commercial  relations  with  foreigners.  Among  the 
tests  are  the  existence  of  a  de  facto  political  organization  of  the  insurgents, 
sufficient  in  character,  population,  and  resources  to  constitute  it,  if  left 
to  itself,  a  state  among  the  nations,  reasonably  capable  of  discharging  the 
duties  of  a  state;  the  actual  employment  of  military  forces  on  each  side, 
acting  in  accordance  with  the  rules  and  customs  of  war,  such  as  the  use 
of  flags  of  truce,  cartels,  e.xchange  of  prisoners,  and  the  treatment  of  cap- 
tured insurgents  by  the  parent  state  as  prisoners  of  war;  and,  at  sea,  em- 
ployment by  the  insurgents  of  commissioned  cruisers,  and  the  exercise  by 
the  parent  government  of  the  rights  of  blockade  of  insurgent  ports  against 
neutral  commerce  and  of  stopping  and  searching  neutral  vessels  at  sea. 

487 


488  APPENDIX  I 

If  all  these  elements  exist,  the  condition  of  things  is  undoubtedly  war;  and 
it  may  be  war  before  they  are  all  ripened  into  activity. 

As  to  the  relation  of  the  foreign  state  to  the  contest,  if  it  is  solely  on  land, 
and  the  foreign  state  is  not  contiguous,  it  is  difficult  to  imagine  a  call  for 
the  recognition.     If,  for  instance,  the  United  States  should  formally  recog- 
nize belligerent  rights  in  an  insurgent  community  at  the  centre  of  Europe, 
with  no  seaports,  it  would  require  a  hardly  supposable  necessity  to  make  it 
else  than  a  mere  demonstration  of  moral  support.     But  a  case  may  arise 
where  a  foreign  state  must  decide  whether  to  hold  the  parent  state  respon- 
sible for  acts  done  by  the  insurgents  or  to  deal  with  the  insurgents  as  a 
de  facto  government.      (Mr.  Canning  to  Lord  Granville  on  the  Greek 
War,  June  22,  1826.)     If  the  foreign  state  recognizes  belligerency  in  the 
insurgents,  it  releases  the  parent  state  from  responsibility  for  whatever 
may  be  done  by  the  insurgents  or  not  done  by  the  parent  state  where  the 
insurgent  power  extends.     (Mr.  Adams  to  Mr.  Seward,  June  11,  1861, 
"Diplomatic  Correspondence,"  105.)     In  a  contest  wholly  upon  land,  a 
contiguous  state  may  be  obliged  to  make  the  decision  whether  or  not  to 
regard  it  as  war;  but,  in  practice,  this  has  not  been  done  by  a  general  and 
prospective  declaration  but  by  actual  treatment  of  cases  as  they  arise. 
Where  the  insurgents  and  the  parent  state  are  maritime  and  the  foreign 
nation  has  extensive  commercial  relations  and  trade  at  the  ports  of  both, 
and  the  foreign  nation  and  either  or  both  of  the  contending  parties  have 
considerable  naval  force,  and  the  domestic  contest  must  extend  itself  over 
the  sea,  then  the  relations  of  the  foreign  state  to  this  contest  are  far  differ- 
ent.    In  such  a  state  of  things,  the  liability  to  political  complications,  and 
the  questions  of  right  and  duty  to  be  decided  at  once,  usually  away  from 
home,  by  private  citizens  or  naval  officers,  seem  to  require  an  authoritative 
and  general  decision  as  to  the  status  of  the  three  parties  involved.     If 
the  contest  is  a  war,  all  foreign  citizens  and  officers,  whether  executive  or 
judicial,  are  to  follow  one  line  of  conduct.     If  it  is  not  a  war,  they  are  to 
follow  a  totally  different  line.     If  it  is  a  war,  the  commissioned  cruisers 
of  both  sides  may  stop,  search,  and  capture  the  foreign  vessel;   and  that 
vessel  must  make  no  resistance  and  must  submit  to  adjudication  by  a 
prize-court.     If  it  is  not  a  war,  the  cruisers  of  neither  party  can  stop  or 
search  the  foreign  merchant  vessel;  and  that  vessel  may  resist  all  attempts 
in  that  direction,  and  the  ships  of  war  of  the  foreign  state  may  attack  and 
capture  any  cruiser  persisting  in  the  attempt.     If  it  is  war,  foreign  nations 
must  await  the  adjudication  of  prize  tribunals.     If  it  is  not  war,  no  such 
tribunal  can  be  opened.     If  it  is  a  war,  the  parent  state  may  institute  a 
blockade  jure  gentium,  of  the  insurgent  ports,  which  foreigners  must  re- 
spect;  but  if  it  is  not  a  war,  foreign  nations  having  large  commercial  in- 
tercourse with  the  country  will  not  respect  a  closing  of  insurgent  ports 
by  paper  decrees  only.     If  it  is  a  war,  the  insurgent  cruisers  are  to  be 
treated  by  foreign  citizens  and  officials,  at  sea  and  in  port,  as  lawful  bel- 
ligerents.    If  it  is  not  a  war,  those  cruisers  are  pirates  and  may  be  treated 
as  such.     If  it  is  a  war,  the  rules  and  risks  respecting  carrying  contraband, 


APPENDIX  I  489 

or  despatches,  or  military  persons  come  into  play.  If  it  is  not  a  war,  they 
do  not.  Within  foreign  jurisdiction,  if  it  is  a  war,  acts  of  the  insurgents, 
in  the  way  of  preparation  and  equipments  for  hostility,  may  be  breaches 
of  neutrality  laws;  while,  if  it  is  not  a  war,  they  do  not  come  into  that 
category  but  into  the  category  of  piracy  or  of  crimes  by  municipal  law. 

Now,  all  private  citizens  of  a  foreign  state,  and  all  its  executive  officers 
and  judicial  magistrates,  look  to  the  political  department  of  their  govern- 
ment to  prescribe  the  rule  of  their  conduct,  in  all  their  possible  relations 
with  the  parties  to  the  contest.     This  rule  is  prescribed  in  the  best  and 
most  intelligible  manner  for  all  possible  contingencies  by  the  simple  decla- 
ration that  the  contest  is  or  is  not  to  be  treated  as  war.     If  the  state  of 
things  requires  the  decision,  it  must  be  made  by  the  political  department 
of  the  government.     It  is  not  fit  that  cases  should  be  left  to  be  decided 
as  they  may  arise,  by  private  citizens  or  naval  or  judicial  officers,  at  home 
or  abroad,  by  sea  or  land.     It  is,  therefore,  the  custom  of  nations  for  the 
political  department  of  a  foreign  state  to  make  a  decision.     It  owes  it  to 
its  own  citizens,  to  the  contending  parties,  and  to  the  peace  of  the  world, 
to  make  that  decision  seasonable.     If  it  issues  a  formal  declaration  of 
belligerent  rights  prematurely,  or  in  a  contest  with  which  it  has  no  com- 
plexity, it  is  a  gratuitous  and  unfriendly  act.     If  the  parent  government 
complains  of  it,  the  complaint  must  be  upon  one  of  these  grounds.    To 
decide  whether  the  recognition  was  uncalled-for  and  premature  requires 
something  more  than  a  consideration  of  proximate  facts  and  the  overt 
and  formal  acts  of  the  contending  parties.     The  foreign  state  is  bound  and 
entitled  to  consider  the  preceding  history  of  the  parties;  the  magnitude 
and  completeness  of  the  political  and  military  organization  and  prepara- 
tions on  each  side;   the  probable  extent  of  the  conflict,  by  sea  and  land; 
the  probable  extent  and  rapidity  of  its  development;  and,  above  all,  the 
probability  that  its  own  merchant  vessels,  naval   oflScers,   and  consuls 
may  be  precipitated  into  sudden  and  difiicult  complications  abroad.     The 
best  that  can  be  said  is  that  the  foreign  state  may  protect  itself  by  a  sea- 
sonable decision,  either  upon  a  test  case  that  arises,  or  by  a  general  pros- 
pective decision;    while,  on  the  other  hand,  if  it  makes  the  recognition 
prematurely,  it  is  liable  to  the  suspicion  of  an  unfriendly  purpose  to  the 
parent  state.     The  recognition  of  belligerent  rights  is  not  solely  to  the 
advantage  of  the  insurgents.     They  gain  the  great  advantage  of  a  recog- 
nized status  and  the  opportunity  to  employ  commissioned  cruisers  at  sea 
and  to  exert  all  the  powers  known  to  maritime  warfare,  with  the  sanction 
of  foreign  nations.     They  can  obtain  abroad  loans,  military  and  naval 
materials,  and  enlist  men,  as  against  everything  but  neutrality  laws;  their 
flag  and  commissions  are  acknowledged,  their  revenue  laws  are  respected, 
and  they  acquire  a  quasi-political  recognition.     On  the  other  hand,  the 
parent  government  is  relieved  from  responsibility  for  acts  done  in  the 
insurgent  territory;    its  blockade  of  its  own  ports  is  respected;  and  it  ac- 
quires a  right  to  e.xert,  against  neutral  commerce,  all  the  powers  of  a  party 
to  a  maritime  war. 


490  APPENDIX  I 

This  subject  received  a  full  discussion  in  the  correspondence  between 
Mr.  Adams  and  Earl  Russell,  beginning  April  7,  and  ending  September 
18,  1865.  The  principal  contest  was,  whether  the  recognition  by  Great 
Britain  of  belligerent  rights  in  the  rebel  States  was  "unprecedented  and 
precipitate,"  as  alleged  by  Mr.  Adams.  This  belongs  rather  to  history 
than  to  law;  but  the  principles  of  international  law  applicable  to  the  facts 
were  adduced  on  each  side.  The  rule  Mr.  Adams  lays  down  is  this: 
"Whenever  an  insurrection  against  the  established  government  of  a  coun- 
try takes  place,  the  duty  of  governments,  under  obligations  to  maintain 
peace  and  friendship  with  it,  appears  to  be,  at  first,  to  abstain  carefully 
from  any  step  that  may  have  the  smallest  influence  in  affecting  the  result. 
Whenever  facts  occiu*  of  which  it  is  necessary  to  take  notice,  either  be- 
cause they  involve  a  necessity  of  protecting  personal  interests  at  home  or 
avoiding  an  implication  in  the  struggle,  then  it  appears  to  be  just  and 
right  to  provide  for  the  emergency  by  specific  measures,  precisely  to  the 
extent  that  may  be  required,  but  no  further.  It  is,  then,  facts  alone,  and 
not  appearances  or  presumptions,  that  justify  action.  But  even  these 
are  not  to  be  dealt  Avith  further  than  the  occasion  demands :  a  rigid  neu- 
trality in  whatever  may  be  done  is,  of  course,  understood.  If,  after  the 
lapse  of  a  reasonable  period,  there  be  little  prospect  of  a  termination  of 
the  struggle,  especially  if  this  be  carried  on  upon  the  ocean,  a  recognition 
of  the  parties  as  belligerents  appears  to  be  justifiable;  and  at  that  time, 
so  far  as  I  can  ascertain,  such  a  step  has  never,  in  fact,  been  objected  to." 
He  contends  that  the  recognition  of  belligerent  rights  in  the  American 
colonies,  in  their  war  of  independence,  by  France  and  Holland,  was  not 
made  generally  and  for  all  purposes  but  only  to  meet  existing  facts  and 
not  until  the  presence  of  American  war  vessels  in  their  ports  made  a  de- 
cision necessary;  and  that  France  and  England,  alike,  seemed  to  consider 
that  a  recognition  of  belligerency  was  an  unfriendly  act,  unless  justified 
by  necessity.  He  considers  the  belligerent  rights  of  the  South  American 
provinces  to  have  been  recognized  upon  the  same  principles  and  refers 
to  late  civil  wars  in  Europe,  involving  states  more  or  less  maritime,  where 
no  such  recognition  had  been  made.  He  contends  that  the  recognition, 
in  this  instance,  created  all  the  naval  power  the  rebellion  possessed  and  was 
so  influential  upon  its  subsequent  history  that  Great  Britain  and  France 
are  not  entitled  to  the  argument  that  the  event  justified  their  action. 
Earl  Russell  does  not  seem  to  differ  from  Mr.  Adams  on  the  general  prin- 
ciples. He  contends  that  the  state  of  things  upon  which  the  government 
was  required  to  act  had  no  exact  parallel  and  must  be  judged  by  itself. 
He  protests  that  the  overt  and  formal  acts  of  the  two  parties  to  the  war 
are  not  alone  to  be  considered;  and,  referring  to  the  extent  of  the  territory, 
population,  and  resources  of  the  rebellion;  the  existence  of  its  completely 
organized  state  and  general  governments;  its  unequivocal  determination 
to  treat  as  war,  by  sea  and  land,  any  acts  of  authority  which  the  United 
StAtf's.  on  the  other  hand,  had  equally  determined  to  exert;  the  long 
anuiCcuent  history  and  preparations  for  this  revolution;    and  the  car- 


APPENDIX^  491 

tainty  of  the  magnitude  and  extent  of  the  war  and  its  rapid  development 
whenever  it  should  begin  and  that  it  would  require  the  instant  decision 
of  maritime  questions  by  neutral  vessels  of  war  and  merchantmen  alike — 
he  argues  that  it  was  necessary  for  England  to  determine  at  once,  upon 
facts  and  probabilities,  whether  she  should  permit  the  right  of  search  and 
blockade  as  acts  of  war,  and  whether  the  letters  of  marque  or  public  ships 
of  the  rebels,  which  might  appear  at  once  in  many  parts  of  the  world, 
should  be  treated  as  pirates  or  as  lawful  belligerents.  On  this  subject, 
see  further  Mr.  Dennis's  pamphlets  on  the  "Recognition  of  Belligerency," 
Boston,  1865;  letter  of  Mr.  Harcourt  ("Historicus"),  London  Times, 
March  22,  1865;  Lord  Lyons  to  Lord  J.  Russell,  April  22,  1861;  Mr. 
Bright's  speech,  March  13,  1865;  Earl  Russell's  speech,  March  23,  1865; 
proclamations  of  President  Lincoln  of  15th  and  19th  April,  1861,  and  of 
Jefferson  Davis,  17th  April,  1861,  and  Queen  Victoria,  13th  May,  1861. 

As  to  the  recognition  of  belligerency  by  France  and  Holland  in  the 
American  Revolution,  see  the  above  correspondence  between  ]Mr.  Adams 
and  Earl  Russell;  the  Annual  Register,  1776,  pp.  182,  183;  1779,  p.  249; 
Martens's  "Causes  C^Iebres,"  I,  113;  Baron  Van  Zuylen  to  Mr.  Pike, 
September  17,  1861,  "U.  S.  Diplomatic  Correspondence,"  368. 

Upon  our  claim  for  a  recognition  of  our  belligerency  by  Denmark  dur- 
ing the  war  of  the  Revolution  and  the  demand  for  compensation  for  Paul 
Jones's  prizes  surrendered  by  Denmark  to  England,  see  Sparks's  "Diplo- 
matic Correspondence,"  IH,  121;  Sparks's  "Life  of  Franklin,"  VIII, 
407-462;  U.  S.  Laws,  VI,  61;  State  Papers,  III,  4;  despatch  of  Mr. 
Wheaton  to  Mr.  Upshur,  November  10,  1843, 

During  the  civil  war  between  Spain  and  her  South  American  colonies, 
the  belligerency  of  the  latter  was  recognized  by  the  United  States.  U.  S. 
r.  Palmer,  Wheaton's  Rep.,  Ill,  610;  La  Divina  Pastora,  ib.,  IV,  52;  La 
Santissima  Trinidad,  ib.,  VII,  337;  Nueva  Anna,  ib.,  VI,  193.  So  in  the 
case  of  the  civil  war  between  Texas  and  Mexico.  Mr.  Forsyth  to  the 
Mexican  minister,  September  20,  1836;  Opinions  of  Attorneys-General, 
120,  iii.  As  to  the  belligerent  status  of  the  Greeks  during  their  war 
with  Turkey,  see  Lord  Russell's  speech.  May  6,  1861;  Mr.  Canning  to 
Lord  Granville,  June  22,  1826;  Stapleton's  "Life  of  Canning,"  476.  Also, 
as  to  belligerent  rights  of  the  vSouth  American  provinces,  see  the  British 
cabinet  decision  of  July  23,  1824,  Canning's  "Life,"  399,  Briiish  Annual 
Register,  1823,  146.— D. 

Recognition  of  Independence. — It  is  an  established  general  principle  that 
each  nation  is  to  settle  for  itself  the  form  in  which  it  will  live;  and  when 
that  is  settled,  foreign  nations  recognize  it.  So,  it  is  purely  an  internal 
matter  whether  a  community,  previously  one,  shall  divide  itself  by  force 
or  by  agreement  and  become  two  or  more  states.  When  that  matter  is 
settled,  foreign  nations  recognize  it  as  a  fact.  No  questions  can  arise  on 
either  of  these  points  when  the  parties  to  the  change  have  agreed  or  ac- 
quiesced and  the  fact  has  passed  into  history.  Doubts  arise  where  a 
'''i'^eign  state  does  some  act,  which,  to  a  greater  or  less  extent,  recognizes 


492  APPENDIX  I 

a  new  dynasty  in  a  state,  before  the  old  dynasty  has  surrendered  its 
claim  or  recognizes  a  new  state  created  by  rebellion  before  the  parent 
government  has  acquiesced.  It  would  be  a  wrong  view  and  lead  to  false 
results,  if  we  assumed  that  the  foreign  state  is  to  recognize  everything 
possible  in  the  new  state,  once  for  all,  or  to  recognize  nothing.  There  are, 
in  truth,  stages  and  degrees  of  recognition.  Where  the  purpose  of  the 
foreign  state  is  just  and  friendly,  it  will  go  no  further  than  its  own  neces- 
sities require.  We  have  already  seen  (note  15  to  sec.  19)  that  these 
necessities  may  require  it  to  recognize  belligerent  rights  in  the  insurgent 
government.  Another  stage  in  the  contest  may  require  it  to  treat  with 
that  government  with  reference  to  its  de  facto  revenue  and  commercial 
regulations,  and  the  rights  of  foreign  subjects,  in  their  persons  or  prop- 
erty, being  within  the  territory  under  the  control  of  that  government,  or 
for  reparation  for  past  and  prevention  of  future  wrongs.  If  the  necessities 
of  the  foreign  state  require  these  acts  to  be  done,  the  parent  government 
has  no  cause  of  complaint.  It  is  her  misfortune  that  the  insurrection  has 
dimensions  and  power  which  exclude  her  authority  for  the  time  and 
compel  foreign  nations  to  deal  with  an  intruding  government  that  has 
authority  de  facto.  The  cardinal  rule  is,  while  they  must  not  interfere 
to  affect  the  contest,  foreign  nations  may  and  must  live  and  trade,  not- 
withstanding the  contest.  The  test  is — did  the  necessities  of  the  foreign 
state  require  the  act,  and  did  the  act  recognize  no  more  than  existed  and 
than  those  necessities  required  ?  The  acts  referred  to  are  special  and  casual 
and  temporary,  and  are  not  inconsistent  with  a  recognition  of  the  fact 
that  the  contest  is  still  undecided.  But,  if  the  foreign  state  makes  a  gen- 
eral treaty  with  the  new  state,  substantially  as  with  an  independent  na- 
tion, with  terms  looking  to  general  and  permanent  relations,  that  act  is 
a  general  recognition  of  independence.  Whether  this  final  step  is  justifi- 
able depends  upon  the  same  tests:  namely,  the  necessities  of  foreign  states 
and  the  truth  of  the  fact  implied,  that  the  state  treated  with  was,  at  the 
time,  in  the  condition  de  facto  of  an  independent  state.  Where  the  neces- 
sities of  the  foreign  state  are  spoken  of,  the  term  is  to  be  understood  in  a 
liberal  sense.  It  refers  to  a  state  of  things  when  a  just  regard  to  the  duties 
and  rights  of  a  government,  in  reference  to  the  interests  confided  to  it, 
requires  its  action.  It  is  among  the  duties  of  a  government  to  keep  open 
to  its  subjects  commercial  intercourse  with  all  practicable  parts  of  the  world, 
the  privileges  of  travel  and  sojourning,  and  all  the  forms  of  intercourse 
beneficial  to  humanity,  and  to  make  arrangements  for  the  protection  of 
its  citizens  in  these  pursuits.  To  that  end,  among  the  frequent  con\Til- 
sions  of  states,  it  is  often  necessary  for  a  foreign  power  to  deal  with  the 
party  in  possession  of  a  portion  of  the  state.  To  wait  till  the  question  of 
right  is  determined  would  be  to  suspend  no  small  part  of  the  life  of  nations. 
The  justification  of  special  acts  short  of  absolute  and  formal  recognition 
of  sovereign  independence  must  depend  upon  the  circumstances  of  each 
case,  and  little  light  can  be  thrown  upon  them  by  abstract  statements 
further  than  have  been  already  made.     But,  with  reference  to  the  final 


APPENDIX  I  493 

recognition  by  a  general  treaty,  or  by  the  establishing  of  full  diplomatic 
intercourse,  a  more  positive  rule  can  be  laid  down.  The  only  test  required 
is  that  the  new  state  shall  be,  in  fact,  what  the  recognizing  state  assumes 
it  to  be;  for  it  may  be  conceded,  once  for  all,  that  it  is  among  the  neces- 
sities of  nations  to  have  treaties  and  diplomatic  intercourse  with  existing 
states.  The  practice  of  nations  furnishes  the  best  definitions  and  limita- 
tions of  the  condition  of  things  in  the  new  state,  which  will  justify  such  a 
recognition.  It  is  not  necessary  that  the  parent  state  or  deposed  dynasty 
should  have  ceased  from  all  efforts  to  regain  its  power.  On  the  other  hand, 
it  is  necessary  that  the  contest  should  have  been  virtually  decided. 

It  was  nearly  seventy  years  after  the  declaration  of  independence  by 
the  Netherlands  that  it  was  recognized  by  Spain,  in  the  treaty  of  Miin- 
ster  of  1648;  but,  at  various  stages  during  that  period,  the  Netherlands 
were  dealt  with  as  a  sovereign  state  by  all  the  powers  of  Europe  except 
Austria.  (Dumont,  V,  507;  VI,  429.  Mackintosh's  "Works,"  III,  444.) 
The  new  dynasty  of  Braganza  was  established  over  Portugal  by  a  revolt 
against  Spain  in  1640  and  was  not  acknowledged  by  Spain  until  the  treaty 
of  Lisbon  of  1688;  but  the  king  of  England  made  a  general  treaty  with 
the  king  of  Portugal,  as  a  lawful  sovereign,  in  1641,  on  the  ground  of 
"his  solicitude  to  preserve  the  tranquillity  of  his  kingdoms  and  to  secure 
the  liberty  of  trade  of  his  beloved  subjects."  (Dumont,  VI,  238;  VII, 
238.  Mackintosh's  "Works,"  III,  446.)  All  the  Continental  powers 
treated  with  the  Commonwealth  as  the  English  sovereignty,  though  the 
Stuarts  were  asserting  their  claim,  which  they  afterward  made  good. 
And  after  the  Revolution  of  1688  and  the  establishment  of  the  Orange 
dynasty,  the  refusal  of  France  and  Spain  to  recognize  it,  and  their  per- 
sistent recognition  of  the  son  of  James  II  were  resented  by  England  as 
acts  of  hostility  and  led  to  her  alliance  with  Holland  and  Germany  against 
them.     (Mackintosh's  "Works,"  III,  446.) 

As  to  the  recognition  of  the  independence  of  the  North  American  prov- 
ince by  France  and  Holland,  see  Phillimore's  "International  Law,"  III, 
sec.  15;  Martens's  "Causes  Celfebres,"  I,  103,  466;  Canning's  "Speeches," 
V,  322;  Briiiih  Annual  Register,  1776,  182;  1779,  249;  Baron  Van  Zuylen 
to  Mr.  Pike,  September  17,  1861,  "U.  S.  Diplomatic  Correspondence," 
368;  correspondence  between  Mr.  Adams  and  Earl  Russell,  April  to 
September,  1865.  The  reasons  assigned  by  England  and  other  powers 
for  not  recognizing  the  French  Republic  of  1792  were  the  unsettled  state 
of  France,  and  the  character  of  the  acts  of  the  republic,  and  their  alleged 
effect  upon  the  internal  affairs  of  neighboring  nations;  and  the  refusal 
of  England  to  treat  with  Napoleon  from  1808  to  1814  has  been  put  upon 
special  grounds  and  not  upon  his  want  of  competency  to  act  as  a  sover- 
eign. Phillimore's  "International  Law,"  I,  sec.  390;  II,  sec.  19;  Can- 
ning's "Speeches,"  V,  323.  The  European  powers  recognized  successively 
the  revolutionary  governments  of  Louis  Philippe  in  1830,  of  the  republic 
in  1848,  and  of  the  empire  in  1852.  In  the  (Jreek  War,  Great  Britain, 
France,  and  Russia,  as  early  as  1827,  made  consular  and  commercial 


494  APPENDIX  I 

arrangements  with  Greece,  and  recognized  her  independence  formally  in 
1832.     The  independence  of  Belgium  was  recognized  at  once,  in  1830, 
without  the  consent  of  Holland.     (But  these  cases  of  Greece  and  Belgium 
are  both  instances  of  forcible  intervention  and  not  of  mere  recognition.) 
The  independence  of  the  South  American  republics  was  recognized 
first  by  the  United  States,  and  tardily  by  England,  but  by  both  upon  the 
ground  that  after  long-recognized  belligerency  and  the  practically  un- 
obstructed exercise  by  them  of  sovereign  powers,  Spain,  separated  by  an 
ocean,  had  abandoned  actual  efforts  for  their  reduction  and  only  clung 
to  a  nominal  right.     Canning's  speech,  February  4,  182.5;   Hansard,  XH, 
78;    Mackintosh's  speech,  June  15,  1824;    Mackintosh's  "Works,"  HI, 
749;    President  Jackson's  message,  December  21,  1836.     In  1818,  Mr, 
Clay  proposed  in  Congress  a  mission  to  the  South  American  provinces 
to  express  the  sympathy  of  the  United  States  and  with  a  view  to  enter 
into  friendly  relations  with  them  at  a  future  day.     The  proposition  was 
rejected  by  a  vote  of  115  to  45,  on  the  ground  of  the  still  unsettled  state 
of  the  provinces  and  the  continuance  of  actual  war.     At  the  next  session 
of  Congress,  in  November,  1818,  President  Monroe,  in  his  annual  message, 
referred  to  the  condition  of  those  provinces;  to  the  probable  mediation  of 
the  allied  powers;   and  expressed  his  hope  and  belief  that  they  would  not 
intervene  by  force  and  his   satisfaction  with  the  course  of   neutrality 
adopted  by  the  United  States.     In  his  message  of  December,  1819,  he 
says  that  Buenos  Ayres  "still  maintains  unshaken  the  independence  which 
it  declared  in  1816  and  has  enjoyed  since  1810.     Like  success  has  attended 
Chile  and  the  provinces  north  of  La  Plata,  and  likewise  Venezuela."     He 
speaks  of  the  situation  and  resources  of  the  provinces  as  giving  them 
advantages  very  difficult  for  Spain,  so  distant  a  power,  to  overcome  and 
adds:  "The  steadiness,  consistency,  and  success  with  which  they  have 
pursued  their  object,  as  evinced  more  particularly  by  the  undisputed 
sovereignty  which  Buenos  Ayres  has  so  long  enjoyed,  evidently  give  them 
a  strong  claim  to  the  favorable  consideration  of  other  nations.     These 
sentiments  on  the  part  of  the  United  States  have  rtpt  been  withheld  from 
other  powers  with  whom  it  is  desirable  to  act  in  concert.     Should  it  become 
manifest  to  the  world  that  the  efforts  of  Spain  to  subdue  these  provinces 
will  be  fruitless,  it  may  be  presumed  that  the  Spanish  Government  itself 
will  give  up  the  contest.     In  producing  such  a  determination,  it  cannot 
be  doubted  that  the  opinions  of  friendly  powers  who  have  taken  no  part 
in  the  controversy  will  have  their  merited  influence."     At  the  same  time, 
the  President  recommended  a  revision  of  the  laws  for  the  preservation 
of  neutrality,  so  as  to  give  them  greater  effect.     In  his  message  of  De- 
cember,  1820,  he  refers  to  the  continued  success  of  the  revolutionists, 
while  "in  no  part  of  South  America  has  Spain  made  any  impression  on 
the  colonies";  and,  expressing  the  hope  that  the  change  in  the  govern- 
ment of  Spain  will  lead  to  the  recognition  of  their  independence  by  that 
power,  adds:  "To  promote  that  result  by  friendly  counsels  with  other 
Dowers,  including  Spain  herself,  has  been  the  uniform  policy  of  this  gov- 


APPENDIX  I  495 

ernment."  In  February,  1821,  Mr.  Clay  again  brought  forward  a  resolu- 
tion for  acknowledging  the  independence  of  the  provinces,  which  passed 
the  House  of  Representatives  but  did  not  pass  the  Senate.  In  his  second 
inaugural  address,  in  March,  1821,  Mr.  Monroe  renews  expressions  of 
hope  that  the  change  in  the  government  of  Spain  will  lead  to  a  recogni- 
tion but  still  advises  neutrality.  In  his  message  of  December,  1821,  he 
says:  "It  has  long  been  manifest  that  it  would  be  impossible  for  Spain  to 
reduce  these  colonies  by  force  and,  equally  so,  that  no  conditions  short 
of  their  independence  would  be  satisfactory  to  them."  In  January,  1822, 
in  accordance  with  a  recommendation  of  the  President,  a  resolution  for  the 
acknowledgment  of  the  independence  of  Mexico  and  the  Spanish  prov- 
inces of  South  America  was  adopted  by  Congress  by  a  nearly  unanimous 
vote,  and  diplomatic  missions  established,  to  which  the  President  soon 
afterward  made  appointments.  It  was  many  years  after  this  that  their 
independence  was  acknowledged  by  Spain. 

In  Texas  the  declaration  of  independence  was  made  in  December,  1835, 
after  a  year  of  fighting.  The  decisive  battle  of  San  Jacinto  was  in  April, 
1836,  which  practically  ended  the  war,  and  Mexico  did  not  again  invade 
Texas,  though  she  still  refused  to  acknowledge  its  independence.  Dur- 
ing the  summer  of  1836,  Congress  passed  a  resolution  to  the  following 
effect:  "That  the  independence  of  Texas  ought  to  be  acknowledged  by 
the  United  States  whenever  satisfactory  information  should  be  received 
that  it  had  in  successful  operation  a  civil  government  capable  of  per- 
forming the  duties  and  fulfilling  the  obligations  of  an  independent  power," 

In  December,  1836,  President  Jackson  sent  a  special  message,  recom- 
mending delay  in  the  recognition.  He  says:  "The  acknowledgments  of 
a  new  state  as  independent  and  entitled  to  a  place  in  the  family  of  na- 
tions is  at  all  times  an  act  of  great  delicacy  and  responsibility;  but  more 
especially  so  when  such  state  has  forcibly  separated  itself  from  another, 
of  which  it  had  formed  an  integral  part  and  which  still  claims  dominion 
over  it.  A  premature  recognition  under  these  circumstances,  if  not  looked 
upon  as  a  justifiable  cause  of  war,  is  always  liable  to  be  regarded  as  a 
proof  of  an  unfriendly  spirit  to  one  of  the  contending  parties.  All  ques- 
tions relative  to  the  government  of  foreign  nations  have  been  treated  by 
the  United  States  as  questions  of  fact  only;  and  our  predecessors  have 
cautiously  abstained  from  deciding  upon  them,  until  the  clearest  evidence 
was  in  their  possession  to  enable  them  not  only  to  decide  correctly  but 
to  shield  their  decisions  from  every  unworthy  imputation.  ...  In  the 
contest  between  Spain  and  her  revolted  colonies  we  stood  aloof  and  waited 
not  only  until  the  ability  of  the  new  states  to  protect  themselves  was 
fully  established  but  until  the  danger  of  their  being  again  subjugated  had 
entirely  passed  away.  Then,  and  not  until  then,  they  were  recognized. 
Such  was  our  course  in  regard  to  Mexico  herself.  The  same  policy  was 
observed  in  all  disputes  arising  out  of  the  separation  into  distinct  govern- 
ments of  those  Spanish-American  States  which  began  or  carried  on  the 
contest  with  the  parent  country,  united  under  one  form  of  government. 


496  APPENDIX  I 

We  acknowledged  the  separate  independence  of  New  Granada,  of  Vene- 
zuela, and  of  Ecuador  only  after  their  independent  existence  was  no 
longer  a  subject  of  dispute  or  was  actually  acquiesced  in  by  those  with 
whom  they  had  been  previously  united.  It  is  true  that,  with  regard  to 
Texas,  the  civil  authority  of  Mexico  has  been  expelled,  its  invading  army 
defeated,  the  chief  of  the  republic  himself  captured,  and  all  present  power 
to  control  the  newly  organized  government  of  Texas  annihilated  within 
its  confines.  But,  on  the  other  hand,  there  is,  in  appearance  at  least,  an 
immense  disparity  of  physical  force  on  the  side  of  Texas.  The  Mexican 
Republic,  under  another  executive,  is  rallying  its  forces  under  a  new  leader 
and  menacing  a  fresh  invasion  to  recover  its  lost  dominion.  Upon  the 
issue  of  this  threatened  invasion  the  independence  of  Texas  may  be  con- 
sidered as  suspended;  and,  were  there  nothing  peculiar  in  the  relative 
situation  of  the  United  States  and  Texas,  our  acknowledgment  of  its  in- 
dependence at  such  a  crisis  could  hardly  be  regarded  as  consistent  with 
the  prudent  reserve  with  which  we  have  heretofore  held  ourselves  bound 
to  treat  all  similar  questions.  .  .  .  Prudence,  therefore,  seems  to  dictate 
that  we  should  still  stand  aloof  and  maintain  our  present  attitude,  if  not 
until  Mexico  itself  or  one  of  the  great  foreign  powers  shall  recognize  the 
independence  of  the  new  government,  at  least  until  the  lapse  of  time  or 
the  course  of  events  shall  have  proved,  beyond  cavil  or  dispute,  the  ability 
of  the  people  of  that  country  to  maintain  their  separate  sovereignty  and 
to  uphold  the  government  established  by  them." 

The  attempt  to  invade  Texas  having  been  abandoned  by  Mexico,  her 
independence  was  acknowledged  by  the  United  States  in  March,  1837, 
and  by  England  and  France,  1840. 

Of  this  history  Mr.  Webster  said  in  1842,  in  his  official  letter  to  Mr. 
Thompson  in  answer  to  the  complaints  of  Mexico:  "It  is  true  that  the 
independence  of  Texas  has  not  been  recognized  by  Mexico.  It  is  equally 
true  that  the  independence  of  Mexico  has  only  been  recently  recognized 
by  Spain;  but  the  United  States,  having  acknowledged  both  the  indepen- 
dence of  Mexico,  before  Spain  acknowledged  it,  and  the  independence  of 
Texas,  although  Mexico  has  not  yet  acknowledged  it,  stands  in  the  same 
relation  toward  both  these  governments.  .  .  .  No  effort  for  the  subjuga- 
tion of  Texas  has  been  made  by  Mexico  from  the  time  of  the  battle  of 
San  Jacinto  on  the  4th  April,  1836,  to  the  commencement  of  the  present 
year;  and,  during  all  this  period,  Texas  has  maintained  an  independent 
government,  carried  on  commerce,  made  treaties  with  nations  in  both 
hemispheres,  and  kept  aloof  aU  attempts  at  invading  her  territory." 

The  action  of  the  United  States  with  reference  to  Hungary  in  1849 
has  been  a  subject  of  some  discussion.  Hungary,  altliough  long  a  com- 
ponent part  of  the  Austrian  Empire,  had  been,  for  centuries  before,  an 
independent  kingdom  with  its  distinct  history;  and  the  Hungarians  had 
still  strong  national  feeling  and  a  different  language  and  very  different 
institutions  from  those  of  Austria.  In  the  general  disturbance  of  1848 
the  Hungarians  established  a  government  completely  organized  in  all  its 


APPENDIX  I  497 

parts,  with  a  large  army,  and  successfully  resisted  the  Austrian  attempts 
to  subjugate  it.  A  civil  war  of  such  an  origin  presents  a  very  different  case 
from  one  originating  in  an  insurrection  of  a  portion  of  a  single  nation,  where 
the  insurgents  act  together  for  the  first  time  and  make  an  original  experi- 
ment at  forming  themselves  into  a  nationality.  Such  a  movement  as 
that  of  Hungary  more  rapidly  and  naturally  takes  form  and  consistency, 
or,  rather,  gives  an  independent  direction  to  its  ancient  and  never-aban- 
doned form  and  consistency,  and  its  chances  for  success  are  better.  In  the 
autumn  of  1848,  M.  Kossuth,  the  chief  of  the  insurrectionary  movement, 
applied  to  Mr.  Stiles,  the  United  States  charge  d'affaires  at  Vienna,  to 
use  his  good  offices  with  the  Imperial  Government,  with  a  view  to  a  cessa- 
tion of  hostilities.  Mr.  Stiles,  without  instructions  from  home,  opened 
communication  with  the  imperial  government  and  was  received  by  the 
imperial  ministers.  Princes  Schwarzenberg  and  Windischgratz,  with  re- 
spect and  expressions  of  thanks  for  his  friendly  purpose.  Some  Hun- 
garian agents  came  to  the  United  States  and  urged  upon  the  government 
the  recognition  of  their  independence  and  the  making  of  a  treaty  of  com- 
merce. President  Taylor  declined  all  immediate  action  in  that  direction 
but  sent  Mr.  Dudley  Mann  to  Europe,  with  secret  instructions  "to  obtain 
minute  and  reliable  information  in  regard  to  Hungary  in  connection  with 
the  affairs  of  adjoining  countries,  the  probable  issue  of  the  present  revo- 
lutionary movements,  and  the  chances  he  may  have  of  forming  com- 
mercial arrangements  with  that  power  favorable  to  the  United  States"; 
and  in  another  sentence:  "The  object  of  the  President  is  to  obtain  informa- 
tion in  regard  to  Hungary  and  her  resources  and  prospects,  with  a  view 
to  an  early  recognition  of  her  independence  and  the  formation  of  com- 
mercial relations  with  her." 

On  this  duty  Mr.  Mann  went  to  the  neighborhood  of  the  contending 
parties  in  1849  but  did  not  enter  Hungary  or  hold  any  direct  communica- 
tion with  her  leaders  and  reported  that  he  found  the  prospects  of  the  revo- 
lution less  promising  than  they  had  been,  or  had  been  believed  to  be,  and 
advised  against  the  recognition  of  independence.  The  intervention  of 
Russia,  with  her  vast  military  force,  had  overborne  the  until  then  successful 
movement.  Mr.  Mann,  in  compliance  with  his  instructions,  forbore  to 
give  publicity  to  his  mission,  and  the  nature  of  his  instructions  first  became 
known  by  the  communication  made  by  President  Taylor  to  the  Senate 
of  the  United  States,  28th  March,  1850,  after  the  Hungarian  War  was  ended. 
M.  Hiilsemann,  the  Austrian  charge  d'affaires  at  Washington,  inquiring 
of  Mr.  Clayton,  secretary  of  state,  was  told  that  "Mr.  Mann's  mission  had 
no  other  object  in  view  than  to  obtain  reliable  information  as  to  the  true 
state  of  affairs  in  Hungary  by  personal  observation." 

This  was  all  that  was  done  by  the  United  States.  The  state  of  things 
in  Hungary  in  1849  would  doubtless  have  justified  any  nation  in  recog- 
nizing the  belligerency  of  Hungary,  if  her  own  relations  with  the  parties 
to  the  contest  had  been  such  as  to  require  such  a  declaration  as  a  guide 
to  her  own  official  and  private  citizens  and  as  a  notice  to  both  parties. 


498  APPENDIX  I 

But  as  the  United  States  had  no  such  complication  and  no  immediate 
cause  to  apprehend  it,  the  government  did  no  act  in  the  nature  of  such  a 
recognition ;  and  the  mission  of  Mr.  Mann  was  secret  and  confidential  and 
did  not  become  known  so  as  to  have  influenced  the  result. 

M.  Hulsemann,  in  a  letter  to  Mr.  Webster,  secretary  of  state,  of  Sep- 
tember 30,  1850,  reopens  the  subject  and  complains  of  the  mission  as  a 
past  transaction,  on  the  ground  that  it  was  a  violation  of  the  law  of  na- 
tions and  unfriendly  to  Austria.  He  objects  to  the  language  used  in  the 
instructions,  especially  the  characterizing  of  "the  rebel  chief  Kossuth  as 
an  illustrious  man,"  and  of  the  terms  in  which  the  Austrian  system  and  the 
intervention  of  Russia,  the  ally  of  Austria,  are  spoken  of,  as  oflFensive  to 
Austria;  and  adds  that  the  publicity  given  to  the  instructions  by  the 
communication  to  the  Senate  requires  the  Austrian  Government  to  meike 
a  formal  protest  against  them. 

Mr.  Webster  replied,  by  letter  of  December  21,  1850,  that  the  United 
States  regards  a  communication  from  one  department  of  its  government 
to  another,  as  from  the  President  to  the  Senate,  as  a  domestic  communi- 
cation, of  which  ordinarily  no  foreign  state  has  cognizance,  and  that  great 
inconvenience  would  result  from  making  such  communications  matter 
of  diplomatic  correspondence  and  discussion.  Mr.  Webster  says:  "The 
undersigned  reasserts  to  M.  Hulsemann  and  to  the  cabinet  of  Vienna,  and 
in  the  presence  of  the  world,  that  the  steps  taken  by  President  Taylor, 
now  protested  against  by  the  Austrian  Government,  were  warranted  by 
the  law  of  nations  and  agreeable  to  the  usages  of  civilized  states."  As 
to  the  language  in  which  the  confidential  instructions  to  Mr.  Mann  were 
couched,  Mr.  Webster  says  they  were  confidential  between  the  President 
and  his  agent,  "in  reference  to  which  the  United  States  cannot  admit 
the  slightest  responsibility  to  the  government  of  His  Imperial  Majesty. 
No  state  deserving  the  appellation  of  independent  can  permit  the  lan- 
guage in  which  it  may  instruct  its  own  oflScers,  in  the  discharge  of  their 
duties  to  itself,  to  be  called  in  question,  under  any  pretext,  by  a  foreign 
power."  He  reminds  M.  Hulsemann  that  they  were  communicated  to 
the  Senate  after  the  war  was  over  and  that  Austria  obtained  its  first 
knowledge  of  the  instructions  from  that  communication. 

It  would  seem  that  the  only  objection  to  the  course  of  the  United  States 
was  that  it  showed  a  desire  to  be  prompt  in  recognizing  Hungary.  This 
Mr.  Webster  admits.  He  says  that  the  people  of  the  United  States  have 
a  deep  interest  in  the  movements  made  by  a  nation  to  regain  its  indepen- 
/  dence  with  institutions  like  our  own,  which  we  deem  to  be  real  blessings  to 
a  people,  against  the  force  of  governments  which  are  not  only  hostile  to 
those  institutions  but  affect  to  consider  them  as  never  having  a  lawful 
origin,  not  being  derived  from  the  consent  of  those  holding  thrones  by 
divme  right.  Mr.  Webster's  position  is  that,  in  such  a  contest,  govern- 
ments hostile  to  popular  institutions  must  expect  to  see  demonstrations 
of  sympathy  and  feeling  by  the  people  of  a  free  country,  and  expressions 
of  it  may  appear  in  confidential  domestic  communications  of  the  govern- 


APPENDIX  I  499 

ment  itself;  but  such  powers  must  be  content  if  the  government,  in  its 
relations  with  them  during  the  contest,  performs  faithfully  the  duties 
enjoined  upon  it  by  international  law,  gives  no  public  and  official  moral 
support  to  the  insurrection,  abstains  from  recognizing  independence  until 
it  exists  in  fact,  and  executes  faithfully  the  duties  of  neutrality  in  the 
contest,  as  regards  all  material  aid.  In  reply  to  M.  Hiilsemann's  complaint 
of  the  language  of  the  President  toward  Russia,  he  reminds  the  writer 
that  Russia  has  made  no  complaint.  Mr.  Webster's  letter  is,  no  doubt, 
a  grave  and  skilful  censure  of  Austria  and  of  her  system  and  relations  to 
freedom  and  would  have  been  open  to  the  charge  of  being  undiplomatic 
if  the  note  of  M.  Hiilsemann  had  not  given  Mr.  Webster  fair  opportunity, 
if  not  provocation,  to  introduce  the  topics  into  his  reply.  W'ebster'a 
"Works,"  VI,  488-506. 

As  a  point  in  international  law  the  transaction  has  little  significance, 
Rs  the  United  States  undoubtedly  did  not  act  in  the  way  of  recognizing 
the  independence  or  even  belligerency  of  Hungary  but  confidentially  and 
secretly  took  its  own  mode  of  making  sure  of  its  ground  in  being  the  earli- 
est, consistently  with  international  law,  to  recognize  the  independence 
of  a  nation  with  whose  cause  it  sympathized.  The  episode  belongs  rather 
to  history,  as  indicating  the  policy  and  feeling  of  the  United  States. 

See  note  41  on  Intervention  in  Mexico. — D. 


APPENDIX   II 

CONVENTION 

For  the  Pacific  Settlement  of  International  Disputes 

"Animated  by  the  sincere  desire  to  work  for  the  maintenance  of  gen- 
eral peace; 

"Resolved  to  promote  by  all  the  efforts  in  their  power  the  friendly 
settlement  of  international  disputes; 

"Recognizing  the  solidarity  uniting  the  members  of  the  society  of  civi- 
lized nations; 

"Desirous  of  extending  the  empire  of  law  and  of  strengthening  the 
appreciation  of  international  justice; 

"Convinced  that  the  permanent  institution  of  a  Tribunal  of  Arbitra- 
tion accessible  to  all,  in  the  midst  of  independent  Powers,  will  contribute 
effectively  to  this  result; 

"Having  regard  to  the  advantages  attending  the  general  and  regular 
organization  of  the  procedure  of  arbitration; 

"Sharing  the  opinion  of  the  august  initiator  of  the  International  Peace 
Conference  that  it  is  expedient  to  record  in  an  International  Agreement 
the  principles  of  equity  and  right  on  which  are  based  the  security  of  States 
and  the  welfare  of  peoples; 

"Being  desirous,  with  this  object,  of  insuring  the  better  working  in 
practice  of  Commissions  of  Inquiry  and  Tribunals  of  Arbitration  and  of 
facilitating  recourse  to  arbitration  in  cases  which  allow  of  a  summary  pro- 
cedure; 

"Have  deemed  it  necessary  to  revise  in  certain  particulars  and  to  com- 
plete the  work  of  the  First  Peace  Conference  for  the  pacific  settlement 
of  international  disputes; 

"The  High  Contracting  Parties  have  resolved  to  conclude  a  new  Con- 
vention for  this  purpose,  and  have  appointed  the  following  as  their  Pleni- 
potentiaries:" 

[Here  follow  the  names  of  Plenipotentiaries.] 

"Who,  after  having  deposited  their  full  powers,  found  in  good  and  due 
form,  have  agreed  upon  the  following: 

Part  I — The  Maintenance  op  General  Peace 
Article  1 
"With  a  view  to  obviating  as  far  as  possible  recourse  to  force  in  the 
relations  between  States,  the  Contracting  Powers  agree  to  use  their  best 
efforts  to  insure  the  pacific  settlement  of  international  differences. 

600 


APPENDIX  II  501 


Part  II — Good  Offices  and  Mediation 

Article  2 

"In  case  of  serious  disagreement  or  dispute,  before  an  appeal  to  arms, 
the  Contracting  Powers  agree  to  have  recourse,  as  far  as  circumstances 
allow,  to  the  good  offices  or  mediation  of  one  or  more  friendly  Powers. 

Article  3 

"Independently  of  this  recourse,  the  Contracting  Powers  deem  it  ex- 
pedient and  desirable  that  one  or  more  Powers  strangers  to  the  dispute 
should,  on  their  own  initiative  and  as  far  as  circumstances  may  allow, 
offer  their  good  offices  or  mediation  to  the  States  at  variance. 

"Powers  strangers  to  the  dispute  have  the  right  to  offer  good  offices 
or  mediation  even  during  the  course  of  hostilities. 

"The  exercise  of  this  right  can  never  be  regarded  by  either  of  the 
parties  in  dispute  as  an  unfriendly  act. 

Article  4 

"The  part  of  the  mediator  consists  in  reconciling  the  opposing  claims 
and  appeasing  the  feelings  of  resentment  which  may  have  arisen  between 
the  States  at  variance. 

Article  5 

"The  functions  of  the  mediator  are  at  an  end  when  once  it  is  declared, 
either  by  one  of  the  parties  to  the  dispute  or  by  the  mediator  himself, 
that  the  means  of  reconciliation  proposed  by  him  are  not  accepted. 

Article  6 

"Good  offices  and  mediation  undertaken  either  at  the  request  of  the 
parties  in  dispute  or  on  the  initiative  of  Powers  strangers  to  the  dispute 
have  exclusively  the  character  of  advice  and  never  have  binding  force. 

Article  7 

"The  acceptance  of  mediation  cannot,  unless  there  be  an  agreement  to 
the  contrary,  have  the  effect  of  interrupting,  delaying,  or  hindering  mobil- 
ization or  other  measures  of  preparation  for  war. 

"If  it  takes  place  after  the  commencement  of  hostilities,  the  military 
operations  in  progress  are  not  interrupted  in  the  absence  of  an  agreement 
to  the  contrary. 

Article  8 
"The  Contracting  Powers  are  agreed  in  recommending  the  application, 
when  circumstances  allow,  of  special  mediation  in  the  following  form: 
"In  case  of  a  serious  difference  endangering  peace,    the  States  at  vari- 


502  APPENDIX  II 

ance  choose  respectively  a  Power  to  which  they  intrust  the  mission  of 
entering  into  direct  communication  with  the  Power  chosen  on  the  other 
side,  with  the  object  of  preventing  the  rupture  of  pacific  relations. 

"For  the  period  of  this  mandate,  the  term  of  which,  unless  otherwise 
stipulated,  cannot  exceed  thirty  days,  the  States  in  dispute  cease  from  all 
direct  communication  on  the  subject  of  the  dispute,  which  is  regarded 
as  referred  exclusively  to  the  mediating  Powers,  which  must  use  their 
best  efforts  to  settle  it. 

"In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are 
charged  with  the  joint  task  of  taking  advantage  of  any  opportunity  to 
restore  peace. 

Part  III — International  Commissions  of  Inquiry 

Article  9 

"In  disputes  of  an  international  nature  involving  neither  honor  nor 
vital  interests  and  arising  from  a  difference  of  opinion  on  points  of  fact, 
the  Contracting  Powers  deem  it  expedient  and  desirable  that  the  parties 
who  have  not  been  able  to  come  to  an  agreement  by  means  of  diplomacy 
should,  as  far  as  circumstances  allow,  institute  an  International  Commis- 
sion of  Inquiry,  to  facilitate  a  solution  of  these  disputes  by  elucidating 
the  facts  by  means  of  an  impartial  and  conscientious  investigation. 

Article  10 

"International  Commissions  of  Inquiry  are  constituted  by  special 
agreement  between  the  parties  in  dispute. 

"The  Inquiry  Convention  defines  the  facts  to  be  examined;  it  deter- 
mines the  mode  and  time  in  which  the  Commission  is  to  be  formed  and 
the  extent  of  the  powers  of  the  Commissioners. 

"It  also  determines,  if  there  is  need,  where  the  Commission  is  to  sit 
and  whether  it  may  remove  to  another  place,  the  language  the  Commis- 
sion shall  use  and  the  languages  the  use  of  which  shall  be  authorized 
before  it,  as  well  as  the  date  on  which  each  party  must  deposit  its  state- 
ment of  facts,  and,  generally  speaking,  all  the  conditions  upon  which  the 
parties  have  agreed. 

"If  the  parties  consider  it  necessary  to  appoint  Assessors,  the  Conven- 
tion of  Inquiry  shall  determine  the  mode  of  their  selection  and  the  extent 
of  their  powers. 

Article  11 

"If  the  Inquiry  Convention  has  not  determined  where  the  Commis- 
sion is  to  sit,  it  will  sit  at  The  Hague. 

"The  place  of  meeting,  once  fixed,  cannot  be  altered  by  the  Commis- 
sion except  with  the  assent  of  the  parties. 

"If  the  Inquiry  Convention  has  not  determined  what  languages  are  to 
be  employed,  the  question  shall  be  decided  by  the  Commission, 


APPENDIX  II  503 


Article  12 

"Unless  an  undertaking  is  made  to  the  contrary,  Commissions  of  In- 
quiry shall  be  formed  in  the  manner  determined  by  Articles  XLV  and 
LVII  of  the  present  Convention. 

Article  13 

"Should  one  of  the  Commissioners  or  one  of  the  Assessors,  should  there 
be  any,  either  die,  or  resign,  or  be  unable  for  any  reason  whatever  to 
discharge  his  functions,  the  same  procedure  is  followed  for  filling  the  va- 
cancy as  was  followed  for  appointing  him. 

Article  14 

"The  parties  are  entitled  to  appoint  special  agents  to  attend  the  Com- 
mission of  Inquiry,  wbose  duty  it  is  to  represent  them  and  to  act  as  inter- 
mediaries between  them  and  the  Commission. 

"They  are  further  authorized  to  engage  counsel  or  advocates,  appointed 
by  themselves,  to  state  their  case  and  uphold  their  interests  before  the 
Commission. 

Article  15 

"The  International  Bureau  of  the  Permanent  Court  of  Arbitration  acts 
as  registry  for  the  Commissions  which  sit  at  The  Hague  and  shall  place 
its  offices  and  staff  at  the  disposal  of  the  Contracting  Powers  for  the  use 
of  the  Commission  of  Inquiry. 

Article  16 

"If  the  Commission  meets  elsewhere  than  at  The  Hague,  it  appoints 
a  Secretary-General,  whose  office  serves  as  registry. 

"It  is  the  function  of  the  registry,  under  the  control  of  the  President, 
to  make  the  necessary  arrangements  for  the  sittings  of  the  Commission, 
the  preparation  of  the  Minutes,  and,  while  the  inquiry  lasts,  for  the  charge 
of  the  archives,  which  shall  subsequently  be  transferred  to  the  Inter- 
national Bureau  at  The  Hague. 

Article  17 

"In  order  to  facilitate  the  constitution  and  working  of  Commissions 
of  Inquiry,  the  Contracting  Powers  recommend  the  following  rules,  which 
shall  be  applicable  to  the  inquiry  procedure  in  so  far  as  the  parties  do  not 
adopt  other  rules. 

Article  18 

"The  Commission  shall  settle  the  details  of  the  procedure  not  covered 
by  the  special  Inquiry  Convention  or  the  present  Convention  and  shall 
•tfrange  all  the  formalities  required  for  dealing  witli  the  evidence. 


604  APPENDIX  II 

■■--^^■' 

Article  19 

"On  the  inquiry  both  sides  must  be  heard. 

"At  the  dates  fixed,  each  party  communicates  to  the  Commission  and 
to  the  other  party  the  statements  of  facts,  if  any,  and,  in  all  cases,  the 
instruments,  papers,  and  documents  which  it  considers  useful  for  ascer- 
taining the  truth,  as  well  as  the  list  of  witnesses  and  experts  whose  evidence 
it  wishes  to  be  heard. 

Article  20 

"The  Commission  is  entitled,  with  the  assent  of  the  Powers,  to  move 
temporarily  to  any  place  where  it  considers  it  may  be  useful  to  have  re- 
course to  this  means  of  inquiry  or  to  send  one  or  more  of  its  members. 
Permission  must  be  obtained  from  the  State  on  whose  territory  it  is  pro- 
posed to  hold  the  inquiry. 

Article  21 

"Every  investigation  and  every  examination  of  a  locality  must  be 
made  in  the  presence  of  the  agents  and  counsel  of  the  parties  or  after 
they  have  been  duly  summoned. 

Article  22 

"The  Commission  is  entitled  to  ask  from  either  party  for  such  explana- 
tions and  information  as  it  considers  necessary. 

Article  23 

"The  parties  undertake  to  supply  the  Commission  of  Inquiry,  as  fully 
as  they  may  think  possible,  with  all  means  and  facilities  necessary  to 
enable  it  to  become  completely  acquainted  with,  and  to  accurately  under- 
stand, the  facts  in  question. 

"They  undertake  to  make  use  of  the  means  at  their  disposal,  under 
their  municipal  law,  to  insure  the  appearance  of  the  witnesses  or  experts 
who  are  in  their  territory  and  have  been  summoned  before  the  Com- 
mission. 

"If  the  witnesses  or  experts  are  unable  to  appear  before  the  Commis- 
sion, the  parties  will  arrange  for  their  evidence  to  be  taken  before  the 
qualified  officials  of  their  own  country. 

Article  24 

"For  all  notices  to  be  served  by  the  Commission  in  the  territory  of  a 
third  Contracting  Power,  the  Commission  shall  apply  direct  to  the  Govern- 
ment of  the  said  Power.  The  same  rule  applies  in  the  case  of  steps  being 
taken  on  the  spot  to  procure  evidence. 

"The  requests  for  this  purpose  are  to  be  executed  so  far  as  the  means 
at  the  disposal  of  the  Power  applied  to  under  its  municipal  law  allow. 


APPENDIX  II  505 

They  cannot  be  rejected  unless  the  Power  in  question  considers  they  are 
calculated  to  impair  its  sovereign  rights  or  its  safety. 

"The  Commission  will  equally  be  always  entitled  to  act  through  the 
Power  on  whose  territory  it  sits. 

Article  25 

"The  witnesses  and  experts  are  summoned  on  the  request  of  the  parties 
or  by  the  Commission  of  its  own  motion  and,  in  every  case,  through  the 
Government  of  the  State  in  whose  territory  they  are. 

"The  witnesses  are  heard  in  succession  and  separately,  in  the  presence 
of  the  agents  and  coimsel,  and  in  the  order  fixed  by  the  Commission. 

Article  26 

"The  examination  of  witnesses  is  conducted  by  the  President. 

"The  members  of  the  Commission  may,  however,  put  to  each  witness 
questions  which  they  consider  likely  to  throw  light  on  and  complete  his 
evidence,  or  get  information  on  any  point  concerning  the  witness  within 
the  limits  of  what  is  necessary  in  order  to  get  at  the  truth. 

"The  agents  and  counsel  of  the  parties  may  not  interrupt  the  witness 
when  he  is  making  his  statement  nor  put  any  direct  question  to  him,  but 
they  may  ask  the  President  to  put  such  additional  questions  to  the  wit- 
ness as  they  think  expedient. 

Article  27 

"The  witness  must  give  his  evidence  without  being  allowed  to  read  any 
written  draught.  He  may,  however,  be  permitted  by  the  President  to  con- 
sult notes  or  documents  if  the  nature  of  the  facts  referred  to  necessitates 
their  employment. 

Article  28 

"A  Minute  of  the  evidence  of  the  witness  is  drawn  up  forthwith  and 
read  to  the  witness.  The  latter  may  make  such  alterations  and  additions 
as  he  thinks  necessary,  which  will  be  recorded  at  the  end  of  his  statement. 

"When  the  whole  of  his  statement  has  been  read  to  the  witness,  he  is 
asked  to  sign  it. 

Article  29 

"The  agents  are  authorized,  in  the  course  of  or  at  the  close  of  the  in- 
quiry, to  present  in  writing  to  the  Commission  and  to  the  other  party 
such  statements,  requisitions,  or  summaries  of  the  facts  as  they  consider 
useful  for  ascertaining  the  truth. 

Article  30 

"The  Commission  considers  its  decisions  in  private  and  the  proceed- 
ings are  secret. 


506  APPENDIX  U 

"All  questions  are  decided  by  a  majority  of  the  members  of  the  Com- 
mission. 

"If  a  member  declines  to  vote,  the  fact  must  be  recorded  in  the  Minutes. 

Article  31 

"The  sittings  of  the  Commission  are  not  public,  nor  the  Minutes  and 
documents  connected  with  the  inquiry  published  except  in  virtue  of  a 
decision  of  the  Commission  taken  with  the  consent  of  the  parties. 

Article  32 

"After  the  parties  have  presented  all  the  explanations  and  evidence 
and  the  witnesses  have  all  been  heard,  the  President  declares  the  inquiry 
terminated,  and  the  Commission  adjourns  to  deliberate  and  to  draw  up 
its  Report. 

Article  33 

"The  Report  is  signed  by  all  the  members  of  the  Commission. 
"If  one  of  the  members  refuses  to  sign,  the  fact  is  mentioned;  but  the 
validity  of  the  Report  is  not  affected. 

Article  34 

"The  Report  of  the  Commission  is  read  at  a  public  sitting,  the  agents 
and  counsel  of  the  parties  being  present  or  duly  summoned. 
"A  copy  of  the  Report  is  given  to  each  party. 

Article  35 

"The  Report  of  the  Commission  is  limited  to  a  statement  of  facts  and 
has  in  no  way  the  character  of  an  Award.  It  leaves  to  the  parties  entire 
freedom  as  to  the  effect  to  be  given  to  the  statement. 

Article  36 

"Each  party  pays  its  own  expenses  and  an  equal  share  of  the  expenses 
incurred  by  the  Commission. 

Part  IV — iNTERNATiONAi  Arbitration 

Chapter  I — The  System  of  Arbitration 

Article  37 

"International  arbitration  has  for  its  object  the  settlement  of  disputes 
between  States  .-.y  Judges  of  their  own  choice  and  on  the  basis  of  respect 
for  law. 

"Recourse  to  arbitration  implies  an  engagement  to  submit  in  good  faith 
to  the  Award. 


APPENDIX  II  501 

Article  38 

"In  questions  of  a  legal  nature,  and  especially  in  the  interpretation  or 
application  of  International  Conventions,  arbitration  is  recognized  by 
the  Contracting  Powers  as  the  most  effective,  and,  at  the  same  time,  the 
most  equitable  means  of  settling  disputes  which  diplomacy  has  failed  to 
settle. 

"Consequently,  it  would  be  desirable  that,  in  disputes  about  the  above- 
mentioned  questions,  the  Contracting  Powers  should,  if  the  case  arose, 
have  recourse  to  arbitration,  in  so  far  as  circumstances  permit. 

Article  39 

"The  Arbitration  Convention  is  concluded  for  questions  already  exist- 
ing or  for  questions  which  may  arise  eventually. 
"It  may  embrace  any  dispute  or  only  disputes  of  a  certain  category. 

Article  40 

"Independently  of  general  or  private  Treaties  expressly  stipulating 
recourse  to  arbitration  as  obligatory  on  the  Contracting  Powers,  the  said 
Powers  reserve  to  themselves  the  right  of  concluding  new  Agreements, 
general  or  particular,  with  a  view  to  extending  compulsory  arbitration  to 
all  cases  which  they  may  consider  it  possible  to  submit  to  it. 

Chapter  II — The  Permanent  Court  of  Arbitration 
Articlb  41 

"With  the  object  of  facilitating  an  immediate  recourse  to  arbitration 
for  international  differences  which  it  has  not  been  possible  to  settle  by 
diplomacy,  the  Contracting  Powers  undertake  to  maintain  the  Perma- 
nent Court  of  Arbitration,  as  established  by  the  First  Peace  Conference, 
accessible  at  all  times  and  operating,  unless  otherwise  stipulated  by  the 
parties,  in  accordance  with  the  rules  of  procedure  inserted  in  the  present 
Convention. 

Article  42 

"The  Permanent  Court  is  competent  for  all  arbitration  cases,  unless 
the  parties  agree  to  institute  a  special  Tribunal. 

Article  43 

"The  Permanent  Court  sits  at  The  Hague, 

"An  International  Bureau  serves  as  registry  for  the  Court.  It  is  the 
channel  for  communications  relative  to  the  meetings  of  tlie  Court;  it  has 
charge  of  the  archives  and  conducts  all  the  mlministrative  business. 

"The  Contracting  Powers  undertake  to  communicate  to  tlic  Hurcau, 


508  APPENDIX  II 

as  soon  as  possible,  a  certified  copy  of  any  conditions  of  arbitration  arrived 
at  between  them  and  of  any  Award  concerning  them  delivered  by  a  special 
Tribunal. 

"They  likewise  undertake  to  communicate  to  the  Bureau  the  laws, 
regulations,  and  documents  eventually  showing  the  execution  of  the  Awards 
given  by  the  Court. 

Article  44 

"Each  Contracting  Power  selects  four  persons  at  the  most,  of  known 
competency  in  questions  of  international  law,. of  the  highest  moral  repu- 
tation, and  disposed  to  accept  the  duties  of  Arbitrator. 

"The  persons  thus  selected  are  inscribed,  as  members  of  the  Court,  in 
a  list  which  shall  be  notified  to  all  the  Contracting  Powers  by  the  Bureau. 

"Any  alteration  in  the  list  of  Arbitrators  is  brought  by  the  Bureau 
to  the  knowledge  of  the  Contracting  Powers. 

"Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one  or 
more  members. 

"The  same  person  can  be  selected  by  different  Powers.  The  members 
of  the  Court  are  appointed  for  a  term  of  six  years.  These  appointments 
are  renewable. 

"Should  a  member  of  the  Court  die  or  resign,  the  same  procedure  is 
followed  for  filling  the  vacancy  as  was  followed  for  appointing  him.  In 
this  case  the  appointment  is  made  for  a  fresh  period  of  six  years. 

Article  45 

"When  the  Contracting  Powers  wish  to  have  recourse  to  the  Permanent 
Court  for  the  settlement  of  a  difference  which  has  arisen  between  them, 
the  Arbitrators  called  upon  to  form  the  Tribunal  with  jurisdiction  to  de- 
cide this  difference  must  be  chosen  from  the  general  list  of  members  of 
the  Court. 

"Failing  the  direct  agreement  of  the  parties  on  the  composition  of  the 
Arbitration  Tribunal,  the  following  course  shall  be  pursued: 

"Each  party  appoints  two  Arbitrators,  of  whom  one  only  can  be  its 
national  or  chosen  from  among  the  persons  selected  by  it  as  members  of 
the  Permanent  Court.     These  Arbitrators  together  choose  an  Umpire. 

"If  the  votes  are  equally  divided,  the  choice  of  the  Umpire  is  intrusted 
to  a  third  Power,  selected  by  the  parties  by  common  accord. 

"If  an  agreement  is  not  arrived  at  on  this  subject  each  party  selects  a 
different  Power,  and  the  choice  of  the  Umpire  is  made  in  concert  by  the 
Powers  thus  selected. 

"If,  within  two  months'  time,  these  two  Powers  cannot  come  to  an  agree- 
ment, each  of  them  presents  two  candidates  taken  from  the  list  of  members 
of  the  Permanent  Court,  exclusive  of  the  members  selected  by  the  parties 
and  not  being  nationals  of  either  of  them.  Drawing  lots  determines 
which  of  the  candidates  thus  presented  shall  be  Umpire. 


APPENDIX  II  509 

Article  46 

"The  Tribunal  being  thus  composed,  the  parties  notify  to  the  Bureau 
their  determination  to  have  recourse  to  the  Court,  the  text  of  their  'Com- 
promis,'  ^  and  the  names  of  the  Arbitrators. 

"The  Bureau  communicates  without  delay  to  each  Arbitrator  the  'Com- 
promis '  and  the  names  of  the  other  members  of  the  Tribunal. 

"The  Tribunal  assembles  at  the  date  fixed  by  the  parties.  The  Bureau 
makes  the  necessary  arrangements  for  the  meeting. 

"The  members  of  the  Tribunal  in  the  exercise  of  their  duties  and  out 
of  their  own  country  enjoy  diplomatic  privileges  and  immunities. 

Article  47 

"The  Bureau  is  authorized  to  place  its  offices  and  staf!  at  the  disposal 
of  the  Contracting  Powers  for  the  use  of  any  special  Board  of  Arbitration. 

"The  jurisdiction  of  the  Permanent  Court  may,  within  the  conditions 
laid  down  in  the  regulations,  be  extended  to  disputes  between  non-Con- 
tracting Powers  or  between  Contracting  Powers  and  non-Contracting 
Powers,  if  the  parties  are  agreed  on  recourse  to  this  Tribunal. 

Article  48 

"The  Contracting  Powers  consider  it  their  duty,  if  a  serious  dispute 
threatens  to  break  out  between  two  or  more  of  them,  to  remind  these  latter 
that  the  Permanent  Court  is  open  to  them. 

"Consequently,  they  declare  that  the  fact  of  reminding  the  parties  at 
variance  of  the  provisions  of  the  present  Convention  and  the  advice 
given  to  them,  in  the  highest  interests  of  peace,  to  have  recourse  to  the 
Permanent  Court  can  only  be  regarded  as  friendly  actions. 

"In  case  of  dispute  between  two  Powers,  one  of  them  can  always  ad- 
dress to  the  International  Bureau  a  note  containing  a  declaration  that  it 
would  be  ready  to  submit  the  dispute  to  arbitration. 

"The  Bureau  must  at  once  inform  the  other  Power  of  the  declaration. 

Article  49 

"The  Permanent  Administrative  Council,  composed  of  the  Diplomatic 
Representatives  of  the  Contracting  Powers  accredited  to  The  Hague  and 
of  the  Netherland  Minister  for  Foreign  Affairs,  who  will  act  as  President, 
is  charged  with  the  direction  and  control  of  the  International  Bureau. 

"The  Council  settles  its  rules  of  procedure  and  all  other  necessary 
regulations. 

"It  decides  all  questions  of  administration  which  may  arise  with  re- 
gard to  the  operations  of  the  Court. 

"It  has  entire  control  over  the  appointment,  suspension,  or  dismissal 
of  the  officials  and  employees  of  the  Bureau. 

"It  fixes  the  payments  and  salaries  and  controls  the  general  expenditure. 

^  The  preliminary  Agroemont  in  an  intornationnl  arbitration  defining 
the  point  at  issue  and  arranging  the  procedure  to  be  followed. 


5iO  APPENDIX  II 

"At  meetings  duly  summoned  the  presence  of  nine  members  is  sufRcient 
to  render  valid  the  discussions  of  the  Council.  The  decisions  are  taken 
by  a  majority  of  votes. 

"The  Council  communicates  to  the  Contracting  Powers  without  delay 
the  regulations  adopted  by  it.  It  furnishes  them  with  an  annual  Report 
on  the  labors  of  the  Court,  the  working  of  the  administration,  and  the 
expenditure.  The  Report  likewise  contains  a  rSsumfi  of  what  is  important 
in  the  documents  communicated  to  the  Bureau  by  the  Powers  in  virtue  of 
Article  XLIII,  paragraphs  3  and  4. 

Article  50 

"The  expenses  of  the  Bureau  shall  be  borne  by  the  Contracting  Powers 
in  the  proportion  fixed  for  the  International  Bureau  of  the  Universal 
Postal  Union. 

"The  expenses  to  be  charged  to  the  adhering  Powers  shall  be  reckoned 
from  the  date  on  which  their  adhesion  comes  into  force. 

Chapter  III — Arbitration  Procedure 

Article  51 

"With  a  view  to  encouraging  the  development  of  arbitration,  the  Con- 
tracting Powers  have  agreed  on  the  following  rules,  which  are  applicable 
to  arbitration  procedure  unless  other  rules  have  been  agreed  on  by  the 
parties. 

Article  52 

^  "The  Powers  which  have  recourse  to  arbitration  sign  a  'Compromis' 
in  which  the  subject  of  the  dispute  is  clearly  defined,  the  time  allowed  for 
appointing  Arbitrators,  the  form,  order,  and  time  in  which  the  communi- 
cation referred  to  in  Article  LXIII  must  be  made,  and  the  amount  of  the 
sum  which  each  party  must  deposit  in  advance  to  defray  the  expenses. 

"The  'Compromis'  likewise  defines,  if  there  is  occasion,  the  manner  of 
appointing  Arbitrators,  any  special  powers  which  may  eventually  belong 
to  the  Tribunal,  where  it  shall  meet,  the  language  it  shall  use,  and  the  lan- 
guages the  employment  of  which  shall  be  authorized  before  it,  and,  gener- 
ally speaking,  all  the  conditions  on  which  the  parties  are  agreed. 

Article  53 

\  "The  Permanent  Court  is  competent  to  settle  the  'Compromis,'  if  the 
parties  are  agreed  to  have  recourse  to  it  for  the  purpose. 

"It  is  similarly  competent,  even  if  the  request  is  only  made  by  one  of 
the  parties,  when  all  attempts  to  reach  an  understanding  through  the 
diplomatic  channel  have  failed,  in  the  case  of: 

"1.  A  dispute  covered  by  a  general  Treaty  of  Arbitration  concluded 
^r  renewed  after  the  present  Convention  has  come  into  force  and  provid- 


APPENDIX  II  511 

ing  for  a  'Compromis'  in  all  disputes  and  not  either  explicitly  or  implicitly 
excluding  the  settlement  of  the  'Compromis'  from  the  competence  of  the 
Court.  Recourse  cannot,  however,  be  had  to  the  Court  if  the  other  party 
declares  that  in  its  opinion  the  dispute  does  not  belong  to  the  category  of 
disputes  which  can  be  submitted  to  compulsory  arbitration,  unless  the 
Treaty  of  Arbitration  confers  upon  the  Arbitration  Tribunal  the  power  of 
deciding  this  preliminary  question. 

"2.  A  dispute  arising  from  contract  debts  claimed  from  one  Power  by 
another  Power  as  due  to  its  nationals,  and  for  the  settlement  of  which  the 
offer  of  arbitration  has  been  accepted.  This  arrangement  is  not  applica- 
ble if  acceptance  is  subject  to  the  condition  that  the  'Compromis'  should 
be  settled  in  some  other  way. 

Article  54 

"In  the  cases  contemplated  in  the  preceding  Article,  the  'Compromis' 
shall  be  settled  by  a  Commission  consisting  of  five  members  selected  in 
the  manner  arranged  for  in  Article  XLV,  paragraphs  3  to  6. 

"The  fifth  member  is  President  of  the  Commission  ex  officio. 

Article  55 

"The  duties  of  Arbitrator  may  be  conferred  on  one  Arbitrator  alone  or 
on  several  Arbitrators  selected  by  the  parties  as  they  please,  or  chosen  by 
them  from  the  members  of  the  Permanent  Court  of  Arbitration  established 
by  the  present  Convention. 

"Failing  the  constitution  of  the  Tribunal  by  direct  agreement  between 
the  parties,  the  course  referred  to  in  Article  XLV,  paragraphs  3  to  6,  is 
followed. 

Article  56 

"When  a  Sovereign  or  the  Chief  of  a  State  is  chosen  as  Arbitrator,  the 
arbitration  procedure  is  settled  by  him. 

Article  57 

"The  Umpire  is  President  of  the  Tribunal  ex  officio. 
"When  the  Tribunal  does  not  include  an  Umpire,  it  appoints  its  own 
President. 

Article  58 

"When  the  'Compromis'  is  settled  by  a  Commission,  as  contemplated 
in  Article  LIV,  and  in  the  absence  of  an  agreement  to  the  contrary,  the 
Commission  itself  shall  form  the  Arbitration  Tribunal. 

Article  59 

"Should  one  of  the  Arbitrators  either  die,  retire,  or  be  unable  for  any 
reason  whatever  to  discharge  his  functions,  the  same  procedure  is  followed 
*Qr  filling  the  vacancy  as  was  followed  for  appointing  him. 


512  APPENDIX  n 


Article  60 

"The  Tribunal  sits  at  The  Hague,  unless  some  other  place  is  selected 
by  the  parties. 

"The  Tribunal  can  only  sit  in  the  territory  of  a  third  Power  with  the 
latter's  consent. 

"The  place  of  meeting  once  fixed  cannot  be  altered  by  the  Tribunal, 
except  with  the  consent  of  the  parties. 

Article  61 

"If  the  question  as  to  what  languages  are  to  be  used  has  not  been  set- 
tled by  the  'Compromis,'  it  shall  be  decided  by  the  Tribunal. 

Article  62 

"The  parties  are  entitled  to  appoint  special  agents  to  attend  the 
Tribunal  to  act  as  intermediaries  between  themselves  and  the  Tribunal. 

"They  are  further  authorized  to  retain  for  the  defence  of  their  rights 
and  interests  before  the  Tribunal  counsel  or  advocates  appointed  by  them- 
selves for  this  purpose. 

"The  members  of  the  Permanent  Court  may  not  act  as  agents,  counsel, 
or  advocates  except  on  behalf  of  the  Power  which  appointed  them  mem- 
bers of  the  Court. 

Article  63 

"As  a  general  rule,  arbitration  procedure  comprises  two  distinct  phases: 
pleadings  and  oral  discussions. 

"The  pleadings  consist  in  the  communication  by  the  respective  agents 
to  the  members  of  the  Tribunal  and  the  opposite  party  of  cases,  counter 
cases,  and,  if  necessary,  of  replies;  the  parties  annex  thereto  all  papers 
and  documents  called  for  in  the  case.  This  communication  shall  be 
made  either  directly  or  through  the  intermediary  of  the  International 
Bureau,  in  the  order  and  within  the  time  fixed  by  the  'Compromis.' 

"The  time  fixed  by  the  'Compromis'  may  be  extended  by  mutual 
agreement  by  the  parties,  or  by  the  Tribunal  when  the  latter  considers 
it  necessary  for  the  purpose  of  reaching  a  Just  decision. 

"The  discussions  consist  in  the  oral  development  before  the  Tribunal  of 
the  arguments  of  the  parties. 

Article  64 

"A  certified  copy  of  every  document  produced  by  one  party  must  be 
communicated  to  the  other  party. 

Article  65 

*' Unless  special  circumstances  arise,  the  Tribunal  does  not  meet  until 
the  pleadings  are  closed. 


APPENDIX  II  513 

Article  66 

"The  discussions  are  under  the  control  of  the  President. 

"They  are  only  pubHc  if  it  be  so  decided  by  the  Tribunal,  with  the 
assent  of  the  parties. 

"They  are  recorded  in  minutes  drawn  up  by  the  Secretaries  appointed 
by  the  President.  These  minutes  are  signed  by  the  President  and  by  one 
of  the  Secretaries  and  alone  have  an  authentic  character. 

Article  67 

"After  the  close  of  the  pleadings,  the  Tribunal  is  entitled  to  refuse  dis- 
cussion of  all  new  papers  or  documents  which  one  of  the  parties  may 
wish  to  submit  to  it  without  the  consent  of  the  other  party. 

Article  68 

"The  Tribunal  is  free  to  take  into  consideration  new  papers  or  docu- 
ments to  which  its  attention  may  be  drawn  by  the  agents  or  counsel  of  the 
parties. 

"In  this  case,  the  Tribunal  has  the  right  to  require  the  production  of 
these  papers  or  documents  but  is  obliged  to  make  them  known  to  the 
opposite  party. 

Article  69 

"The  Tribunal  can,  besides,  require  from  the  agents  of  the  parties  the 
production  of  all  papers  and  can  demand  all  necessary  explanations.  In 
case  of  refusal  the  Tribunal  takes  note  of  it. 

Article  70 

"The  agents  and  the  counsel  of  the  parties  are  authorized  to  present 
orally  to  the  Tribunal  all  the  arguments  they  may  consider  expedient  in 
defence  of  their  case. 

Article  71 

"They  are  entitled  to  raise  objections  and  points.  The  decisions  of  the 
Tribunal  on  these  points  are  final  and  cannot  form  the  subject  of  any 
subsequent  discussion. 

Article  72 

"The  members  of  the  Tribunal  are  entitled  to  put  questions  to  the  agents 
and  counsel  of  the  parties  and  to  ask  them  for  explanations  on  doubtful 
points. 

"Neither  the  questions  put  nor  the  remarks  made  l)y  members  of  the 
Tribunal  in  the  course  of  the  discussions  can  l)e  regarded  as  an  expression 
of  opinion  by  the  Tribunal  in  general  or  by  its  members  in  particular. 


514  APPENDIX  II 


Article  73 

"The  Tribunal  is  authorized  to  declare  its  competence  in  interpreting 
the  'Compromis'  as  well  as  the  other  Treaties  which  may  be  invoked 
and  in  applying  the  principles  of  law. 

Article  74 

"The  Tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct 
of  the  case,  to  decide  the  forms,  order,  and  time  in  which  each  party  must 
conclude  its  arguments,  and  to  arrange  all  the  formalities  required  for 
dealing  with  the  evidence. 

Article  75 

"The  parties  undertake  to  supply  the  Tribunal,  as  fully  as  they  con- 
sider possible,  with  all  the  information  required  for  deciding  the  case. 

Article  76 

"For  all  notices  which  the  Tribunal  has  to  serve  in  the  territory  of  a 
third  Contracting  Power,  the  Tribunal  shall  apply  direct  to  the  Govern- 
ment of  that  Power.  The  same  rule  applies  in  the  case  of  steps  being  taken 
to  procure  evidence  on  the  spot. 

"The  requests  for  this  purpose  are  to  be  executed  as  far  as  the  means 
at  the  disposal  of  the  Power  applied  to  under  its  municipal  law  allow. 
They  cannot  be  rejected  unless  the  Power  in  question  considers  them  cal- 
culated to  impair  its  own  sovereign  rights  or  its  safety. 

"The  Court  will  equally  be  always  entitled  to  act  through  the  Power 
on  whose  territory  it  sits. 

Article  77 

"When  the  agents  and  counsel  of  the  parties  have  submitted  all  the 
explanations  and  evidence  in  support  of  their  case  the  President  shall 
declare  the  discussion  closed. 

Article  78 

"The  Tribunal  considers  its  decisions  in  private  and  the  proceedings 
remain  secret. 

"All  questions  are  decided  by  a  majority  of  the  members  of  the  Tri- 
bunal. 

Article  79 

"The  Award  must  give  the  reasons  on  which  it  is  based.  It  contains 
the  names  of  the  Arbitrators;  it  is  signed  by  the  President  and  Registrar 
or  by  the  Secretary  acting  as  Registrar. 

Article  80 

"The  Award  is  read  out  in  public  sitting,  the  agents  and  counsel  of  the 
parties  being  present  or  duly  summoned  to  attend. 


APPENDIX  n  515 

Article  81 

"The  Award,  duly  pronounced  and  notified  to  the  agents  of  the  parties, 
settles  the  dispute  definitively  and  without  appeal. 

Article  82 

"Any  dispute  arising  between  the  parties  as  to  the  interpretation  and 
execution  of  the  Award  shall,  in  the  absence  of  an  Agreement  to  the  con- 
trary, be  submitted  to  the  Tribunal  which  pronounced  it. 

Article  83 

"The  parties  can  reserve  in  the  'Compromis'  the  right  to  demand  the 
revision  of  the  Award. 

"  In  this  case  and  unless  there  be  an  Agreement  to  the  contrary,  the  de- 
mand must  be  addressed  to  the  Tribunal  which  pronounced  the  Award. 
It  can  only  be  made  on  the  ground  of  the  discovery  of  some  new  fact  cal- 
culated to  exercise  a  decisive  influence  upon  the  Award  and  which  was 
unkno^\^l  to  the  Tribunal  and  to  the  party  which  demanded  the  revision 
at  the  time  the  discussion  was  closed. 

"Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the 
Tribunal  expressly  recording  the  existence  of  the  new  fact,  recognizing  in 
it  the  character  described  in  the  preceding  paragraph,  and  declaring  the 
demand  admissible  on  this  ground. 

"The  'Compromis'  fixes  the  period  within  which  the  demand  for  re- 
vision must  be  made. 

Article  84 

"The  Award  is  not  binding  except  on  the  parties  in  dispute. 

"When  it  concerns  the  interpretation  of  a  Convention  to  which  Powers 
other  than- those  in  dispute  are  parties,  they  shall  inform  all  the  Signatory 
Powers  in  good  time.  Each  of  these  Powers  is  entitled  to  intervene  in 
the  case.  If  one  or  more  avail  themselves  of  this  right,  the  interpretation 
contained  in  the  Award  is  equally  binding  on  them. 

Article  85 
"Each  party  pays  its  own  expenses  and  an  equal  share  of  the  expenses 
of  the  Tribunal. 

Chapter  IV — Arbitration  by  Summary  Procedure 

Article  86 
"With  a  view  to  facilitating  the  working  of  the  system  of  arbitration 
in  disputes  admitting  of  a  summary  procedure,  the  Contracting  Powers 
adopt  the  following  rules,  whicli  shall  be  observed  in  the  absence  of  other 
arrangements  and  subject  to  the  reservation  that  the  provisions  of  Chapter 
III  apply  so  far  as  may  be 


516  APPENDIX  II 


Article  87 

"Each  of  the  parties  in  dispute  appoints  an  Arbitrator.  The  two 
Arbitrators  thus  selected  choose  an  Umpire.  If  they  do  not  agree  on  this 
point,  each  of  them  proposes  two  candidates  taken  from  the  general  list 
of  the  members  of  the  Permanent  Court  exclusive  of  the  members  appointed 
by  either  of  the  parties  and  not  being  nationals  of  either  of  them;  which 
of  the  candidates  thus  proposed  shall  be  the  Umpire  is  determined  by  lot. 

"The  Umpire  presides  over  the  Tribunal,  which  gives  its  decisions  by 
a  majority  of  votes. 

Article  88 

"In  the  absence  of  any  previous  agreement  the  Tribunal,  as  soon  as 
it  is  formed,  settles  the  time  within  which  the  two  parties  must  submit 
their  respective  cases  to  it. 

Article  89 

"Each  party  is  represented  before  the  Tribunal  by  an  agent,  who  serves 
as  intermediary  between  the  Tribunal  and  the  Government  who  appointed 
him. 

Article  90 

"The  proceedings  are  conducted  exclusively  in  writing.  Each  party, 
however,  is  entitled  to  ask  that  witnesses  and  experts  should  be  called. 
The  Tribunal  has,  for  its  part,  the  right  to  demand  oral  explanations  from 
the  agents  of  the  two  parties,  as  well  as  from  the  experts  and  witnesses 
whose  appearance  in  Court  it  may  consider  useful. 

Part  V — Final  Provisions 

Article  91 

"The  present  Convention,  duly  ratified,  shall  replace,  as  between  the 
Contracting  Powers,  the  Convention  for  the  Pacific  Settlement  of  In- 
ternational Disputes  of  the  29th  July,  1899. 

Article  92 

"The  present  Convention  shall  be  ratified  as  soon  as  possible. 

"The  ratifications  shall  be  deposited  at  The  Hague. 

"The  first  deposit  of  ratifications  shall  be  recorded  in  a  proces-verbal 
signed  by  the  Representatives  of  the  Powers  which  take  part  therein  and 
by  the  Netherland  Minister  for  Foreign  Affairs. 

"The  subsequent  deposits  of  ratifications  shall  be  made  by  means  of  a 
written  notification,  addressed  to  the  Netherland  Government  and  accom- 
panied by  the  instrument  of  ratification. 

"A  duly  certified  copy  of  the  proces-verbal,  relative  to  the  first  deposit 
of  ratifications,  of  the  notifications  mentioned  in  the  preceding  paragraph 


APPENDIX  II  517 

and  of  the  instruments  of  ratification  shall  be  immediately  sent  by  the 
Netherland  Government,  through  the  diplomatic  channel,  to  the  Powers 
invited  to  the  Second  Peace  Conference,  as  well  as  to  those  Powers  which 
have  adhered  to  the  Convention.  In  the  cases  contemplated  in  the  pre- 
ceding paragraph,  the  said  Government  shall  at  the  same  time  inform 
the  Powers  of  the  date  on  which  it  received  the  notification. 

Article  93 

"Non-Signatory  Powers  which  have  been  invited  to  the  Second  Peace 
Conference  may  adhere  to  the  present  Convention. 

"The  Power  which  desires  to  adhere  notifies  its  intention  in  writing  to 
the  Netherland  Government,  forwarding  to  it  the  act  of  adhesion,  which 
shall  be  deposited  in  the  archives  of  the  said  Government. 

"This  Government  shall  immediately  forward  to  all  the  other  Powers 
invited  to  the  Second  Peace  Conference  a  duly  certified  copy  of  the  noti- 
fication as  well  as  of  the  act  of  adhesion,  mentioning  the  date  on  which 
it  received  the  notification. 

Article  94 

"The  conditions  on  which  the  Powers  which  have  not  been  invited  to 
the  Second  Peace  Conference  may  adhere  to  the  present  Convention  shall 
form  the  subject  of  a  subsequent  Agreement  between  the  Contracting 
Powers. 

Article  95 

"The  present  Convention  shall  take  effect,  in  the  case  of  the  Powers 
which  were  not  a  party  to  the  first  deposit  of  ratifications,  sixty  days  after 
the  date  of  the  procis-verhal  of  this  deposit  and,  in  the  case  of  the  Powers 
which  ratify  subsequently  or  which  adhere,  sixty  days  after  the  notifica- 
tion of  their  ratification  or  of  their  adhesion  has  been  received  by  the 
Netherland  Government. 

Article  96 

"In  the  event  of  one  of  the  Contracting  Parties  wishing  to  denounce 
the  present  Convention,  the  denunciation  shall  be  notified  in  writing  to 
the  Netherland  Government,  which  shall  immediately  communicate  a 
duly  certified  copy  of  the  notification  to  all  the  other  Powers  informing 
them  of  the  date  on  which  it  was  received. 

"The  denunciation  shall  only  have  effect  in  regard  to  the  notifying 
Power  and  one  year  after  the  notification  has  reached  the  Netherland 
Government. 

Article  97 

"A  register  kept  by  the  Netherland  Minister  for  Foreign  Affairs  shall 
give  the  date  of  the  deposit  of  ratifications  effected  in  virtue  of  Article 
XCII,  paragraphs  3  and  4,  as  well  as  the  date  on  wiiicli  the  iiotificationa 


518  APPENDIX  II 

of  adhesion  (Article  XCIII,  paragraph  2)  or  of  denunciation  (Article 
XCVI,  paragraph  1)  have  been  received. 

"Each  Contracting  Power  is  entitled  to  have  access  to  this  register  and 
to  be  supplied  with  duly  certified  extracts  from  it. 

"In  faith  whereof  the  Plenipotentiaries  have  appended  their  signatures 
to  the  present  Convention. 

"Done  at  The  Hague,  the  18th  October,  1907,  in  a  single  copy,  which 
shall  remain  deposited  in  the  archives  of  the  Netherland  Government, 
and  duly  certified  copies  of  which  shall  be  sent,  through  the  diplomatic 
channel,  to  the  Contracting  Powers." 

[Here  follow  signatures.] 

Hannema 

And  whereas  the  said  Convention  was  signed  by  the  Plenipotentiaries 
of  the  United  States  of  America  under  reserve  of  the  declaration  made  by 
them  to  the  International  Peace  Conference  at  its  session  of  October  16, 
1907,  as  follows: 

"Nothing  contained  in  this  convention  shall  be  so  construed  as  to 
require  the  United  States  of  America  to  depart  from  its  traditional  policy 
of  not  intruding  upon,  interfering  with,  or  entangling  itself  in  the  political 
questions  of  policy  or  internal  administration  of  any  foreign  state;  nor 
shall  anything  contained  in  the  said  convention  be  construed  to  imply  a 
relinquishment  by  the  United  States  of  its  traditional  attitude  toward 
purely  American  questions;" 

And  whereas  the  Senate  of  the  United  States,  by  its  resolution  of 
April  2,  1908  (two-thirds  of  the  Senators  present  concurring  therein), 
did  advise  and  consent  to  the  ratification  of  the  said  Convention  with 
the  following  understanding  and  declarations,  to  wit: 

"Resolved  further,  as  a  part  of  this  act  of  ratification,  That  the  United 
States  approves  this  convention  with  the  understanding  that  recourse  to 
the  permanent  court  for  the  settlement  of  differences  can  be  had  only 
by  agreement  thereto  through  general  or  special  treaties  of  arbitration 
heretofore  or  hereafter  concluded  between  the  parties  in  dispute;  and  the 
United  States  now  exercises  the  option  contained  in  article  fifty-three  of 
said  convention  to  exclude  the  formulation  of  the  'compromis'  by  the 
permanent  court,  and  hereby  excludes  from  the  competence  of  the  perma- 
nent court  the  power  to  frame  the  'compromis'  required  by  general  or 
special  treaties  of  arbitration  concluded  or  hereafter  to  be  concluded  by 
the  United  States,  and  further  expressly  declares  that  the  'compromis' 
required  by  any  treaty  of  arbitration  to  which  the  United  States  may  be 
a  party  shall  be  settled  only  by  agreement  between  the  contracting  parties 
unless  such  treaty  shall  expressly  provide  otherwise." 

And  whereas  the  said  Convention  has  been  duly  ratified  by  the  Gov- 
ernment of  the  United  States  of  America,  by  and  with  the  advice  and  con- 
sent of  the  Senate  thereof,  and  by  the  Governments  of  Germany,  Austria- 
Hungary,  Bolivia,  China,  Denmark,  Mexico,  the  Netherlands,  Russia, 


APPENDIX  II  519 

Salvador,  and  Sweden,  and  the  ratifications  of  the  said  Governments 
were,  under  the  provisions  of  Article  92  of  the  said  Convention,  deposited 
by  their  respective  plenipotentiaries  with  the  Netherlands  Government 
on  November  27,  1909; 

Now,  therefore,  be  it  known  that  I,  William  Howard  Taft,  President 
of  the  United  States  of  America,  have  caused  the  said  Convention  to  be 
made  public,  to  the  end  that  the  same  and  every  article  and  clause  thereof 
may  be  observed  and  fulfilled  with  good  faith  by  the  United  States  and  the 
citizens  thereof,  subject  to  the  reserve  made  in  the  aforesaid  declaration 
of  the  Plenipotentiaries  of  the  United  States  and  to  the  aforesaid  under- 
standing and  declarations  stated  and  made  by  the  Senate  of  the  United 
States  in  its  resolution  of  April  2,  1908. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  caused  the 
seal  of  the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  twenty-eighth  day  of  February 
in  the  year  of  our  Lord  one  thousand  nine  hundred  and  ten, 
[seal.]    and  of  the  Independence  of  the  United  States  of  America 
the  one  hundred  and  thirty-fourth. 

Wm.  H.  Tait. 
By  the  President: 

P.  C.  Knox, 
Secretary  of  State. 


APPENDIX   III 

1907 

International  Prize-Court  Convention 

Signed  ai  The  Hague  October  18,  1907;    ratification  advised  by  the  Senate 

February  15,  1911 

The  text  of  this  convention  is  taken  from  the  copy  printed  for  the 
use  of  the  Senate  of  the  United  States. 

"Animated  by  the  desire  to  settle  in  an  equitable  manner  the  differ- 
ences which  sometimes  arise  in  the  course  of  a  naval  war  in  connection 
with  the  decisions  of  National  Prize-Courts; 

"Considering  that,  if  these  Courts  are  to  continue  to  exercise  their 
functions  in  the  manner  determined  by  national  legislation,  it  is  desirable 
that  in  certain  cases  an  appeal  should  be  provided  under  conditions  con- 
ciliating, as  far  as  possible,  the  public  and  private  interests  involved  in 
matters  of  prize; 

"Whereas,  moreover,  the  institution  of  an  International  Court,  whose 
jurisdiction  and  procedure  would  be  carefully  defined,  has  seemed  to  be 
the  best  method  of  attaining  this  object; 

"Convinced,  finally,  that  in  this  manner  the  hardships  consequent  on 
naval  war  would  be  mitigated;  that,  in  particular,  good  relations  will 
be  more  easily  maintained  between  belligerents  and  neutrals  and  peace 
better  assured; 

"Desirous  of  concluding  a  Convention  to  this  effect,  have  appointed 
the  following  as  their  Plenipotentiaries:" 

[For  names  of  Plenipotentiaries  see  Final  Act,  supra.] 

"Who,  after  depositing  their  full  powers,  found  in  good  and  due  form, 
have  agreed  upon  the  following  provisions: 

Part  I — General  Provisions 

Article  I 

"The  validity  of  the  capture  of  a  merchant  ship  or  its  cargo  is  decided 
before  a  Prize-Court  in  accordance  with  the  present  Convention  when 
neutral  or  enemy  property  is  involved. 

Article  II 

"Jurisdiction  in  matters  of  prize  is  exercised  in  the  first  instance  by  the 
Prize-Courts  of  the  belligerent  captor. 

520 


APPENDIX  III  521 

"The  Judgments  of  these  Courts  are  pronounced  in  public  or  are  officially 
notified  to  parties  concerned  who  are  neutrals  or  enemies. 

Article  III 

"The  judgments  of  National  Prize-Courts  may  be  brought  before  the 
International  Prize-Court — • 

"1.  When  the  judgment  of  the  National  Prize-Courts  affects  the  profH 
erty  of  a  neutral  Power  or  individual; 

"2.  When  the  judgment  affects  enemy  property  and  relates  to — 

"(a.)  Cargo  on  board  a  neutral  ship; 

"  (b.)  An  enemy  ship  captured  in  the  territorial  waters  of  a  neutral 
Power,  when  that  Power  has  not  made  the  capture  the  subject  of  a  diplo- 
matic claim; 

"  (c.)  A  claim  based  upon  the  allegation  that  the  seizure  has  been  effected 
in  violation  either  of  the  provisions  of  a  Convention  in  force  between  the 
belligerent  Powers  or  of  an  enactment  issued  by  the  belligerent  captor. 

"The  appeal  against  the  judgment  of  the  National  Court  can  be  based 
on  the  ground  that  the  judgment  was  wrong  either  in  fact  or  in  law. 

Article  IV 

"An  appeal  may  be  brought — 

"1.  By  a  neutral  Power,  if  the  judgment  of  the  National  Tribunals 
injuriously  affects  its  property  or  the  property  of  its  nationals  (Article  III 
(1)  ),  or  if  the  capture  of  an  enemy  vessel  is  alleged  to  have  taken  place 
in  the  territorial  waters  of  that  Power  (Article  III  (2)  (b)  ); 

"2.  By  a  neutral  individual,  if  the  judgment  of  the  National  Court 
injuriously  affects  his  property  (Article  III  (1)  ),  subject,  however,  to  the 
reservation  that  the  Power  to  which  he  belongs  may  forbid  him  to  bring 
the  case  before  the  Court  or  may  itself  undertake  the  proceedings  in  his 
place; 

"3.  By  an  individual  subject  or  citizen  of  an  enemy  Power,  if  the 
judgnient  of  the  National  Court  injuriously  affects  his  property  in  the 
cases  referred  to  in  Article  III  (2),  except  that  mentioned  in  paragraph  (b). 

Article  V 

"An  appeal  may  also  be  brought,  on  the  same  conditions  as  in  the  pre- 
ceding Article,  by  persons  belonging  either  to  neutral  States  or  to  the 
enemy,  deriving  their  rights  from  and  entitled  to  represent  an  individual 
qualified  to  appeal,  and  who  have  taken  part  in  the  proceedings  before 
the  National  Court.  Persons  so  entitled  may  appeal  separately  to  the 
extent  of  their  interest. 

"The  same  rule  applies  in  the  case  of  persons,  belonging  either  to  neu- 
tral States  or  to  the  enemy,  who  derive  their  rights  from  and  are  entitled 
to  r<!present  a  neutral  Power  whose  property  was  the  subject  of  the  de- 
cision. 


622  APPENDIX  III 


Article  VI 

"When,  in  accordance  with  the  above  Article  III,  the  International 
Court  has  jurisdiction,  the  National  Courts  cannot  deal  with  a  case  in 
more  than  two  instances.  The  municipal  law  of  the  belligerent  captor 
shall  decide  whether  the  case  may  be  brought  before  the  International 
Court  after  judgment  has  been  given  in  first  instance  or  only  after  an 
appeal. 

"If  the  National  Courts  fail  to  give  final  judgment  within  two  years  from 
the  date  of  capture,  the  case  may  be  carried  direct  to  the  International 
Court. 

Article  VII 

"If  a  question  of  law  to  be  decided  is  covered  by  a  Treaty  in  force  be- 
tween the  belligerent  captor  and  a  Power  which  is  itself  or  whose  subject 
or  citizen  is  a  party  to  the  proceedings,  the  Court  is  governed  by  the 
provisions  of  the  said  Treaty. 

"In  the  absence  of  such  provisions,  the  Court  shall  apply  the  rules  of 
international  law.  If  no  generally  recognized  rule  exists,  the  Court  shall 
give  judgment  in  accordance  with  the  general  principles  of  justice  and 
equity. 

"The  above  provisions  apply  equally  to  questions  relating  to  the  order 
and  mode  of  proof. 

"If,  in  accordance  with  Article  III  (2)  (c),  the  ground  of  appeal  is  the 
violation  of  an  enactment  issued  by  the  belligerent  captor,  the  Court  will 
enforce  the  enactment. 

"The  Court  may  disregard  failure  to  comply  with  the  procedure  laid 
down  in  the  enactments  of  the  belligerent  captor,  when  it  is  of  opinion  that 
the  consequences  of  complying  therewith  are  unjust  and  inequitable. 

Article  VIII 

"If  the  Court  pronounces  the  capture  of  the  vessel  or  cargo  to  be  valid, 
they  shall  be  disposed  of  in  accordance  with  the  laws  of  the  belligerent 
captor. 

"If  it  pronounces  the  capture  to  be  null,  the  Court  shall  order  restitu- 
tion of  the  vessel  or  cargo  and  shall  fix,  if  there  is  occasion,  the  amount 
of  the  damages.  If  the  vessel  or  cargo  have  been  sold  or  destroyed,  the 
Court  shall  determine  the  compensation  to  be  given  to  the  owner  on  this 
account. 

"If  the  national  Court  pronounced  the  capture  to  be  null,  the  Court 
can  only  be  asked  to  decide  as  to  the  damages. 

Article  IX 
"The  Contracting  Powers  undertake  to  submit  in  good  faith  to  the 
decisions  of  the  International  Prize-Court  and  to  carry  them  out  with  th© 
least  possible  delay. 


APPENDIX  III  523 

Paut  II — Corutiiution  of  the  International  Priza^owt 

Article  X 

"The  International  Prize-Court  is  composed  of  Judges  and  Deputy 
Judges,  who  will  be  appointed  by  the  Contracting  Powers  and  must  all 
be  jurists  of  known  proficiency  in  questions  of  international  maritime  law 
and  of  the  highest  moral  reputation. 

"The  appointment  of  these  Judges  and  Deputy  Judges  shall  be  made 
within  six  months  after  the  ratification  of  the  present  Convention. 

Article  XI 

"The  Judges  and  Deputy  Judges  are  appointed  for  a  period  of  six 
years,  reckoned  from  the  date  on  which  the  notification  of  their  appoint- 
ment is  received  by  the  Administrative  Council  established  by  the  Conven- 
tion for  the  Pacific  Settlement  of  International  Disputes  of  the  29th  July, 
1899.     Their  appointments  can  be  renewed. 

"Should  one  of  the  Judges  or  Deputy  Judges  die  or  resign,  the  same 
procedure  is  followed  for  filling  the  vacancy  as  was  followed  for  appoint- 
ing him.  In  this  case,  the  appointment  is  made  for  a  fresh  period  of  six 
years. 

Article  XII 

"The  Judges  of  the  International  Prize-Court  are  all  equal  in  rank  and 
have  precedence  according  to  the  date  on  which  the  notification  of  their 
appointment  was  received  (Article  XI,  paragraph  1),  and  if  they  sit  by 
rota  (Article  XV,  paragraph  2),  according  to  the  date  on  which  they  en- 
tered upon  their  duties.  When  the  date  is  the  same  the  senior  in  age  takes 
precedence. 

"The  Deputy  Judges  when  acting  are  assimilated  to  the  Judges.  They 
rank,  however,  after  them. 

Article  XIII 

"T^e  Judges  enjoy  diplomatic  privileges  and  immunities  in  the  per- 
formance of  their  duties  and  when  outside  their  own  country. 

"Before  taking  their  seats,  the  Judges  must  swear,  or  make  a  solemn 
promise  before  the  Administrative  Council,  to  discharge  their  duties  im- 
partially and  conscientiously. 

Article  XIV 

"The  Court  is  compnised  of  fifteen  Judges;  nine  Judges  constitute  a 
quorum. 

"A  Judge  who  is  absent  or  prevented  from  sitting  is  replaced  by  the 
Deputy  Judge. 

Article  XV 

"The  Judges  appointed  by  the  following  Contracting  Powers,  Ger- 
many, the  United  States  of  America,  Austria-Hungary,  France,  Great 
Britain,  Italy,  Japan,  and  Russia,  are  always  summoned  to  sit. 


524  APPENDIX  III 

"The  Judges  and  Deputy  Judges  appointed  by  the  other  Contracting 
Powers  sit  by  rota  as  shown  in  the  Table  annexed  to  the  present  Conven- 
tion; their  duties  may  be  performed  successively  by  the  same  person. 
The  same  Judge  may  be  appointed  by  several  of  the  said  Powers. 

Article  XVI 

"If  a  belligerent  Power  has,  according  to  the  rota,  no  Judge  sitting  in 
the  Court,  it  may  ask  that  the  Judge  appointed  by  it  should  take  part 
in  the  settlement  of  all  cases  arising  from  the  war.  Lots  shall  then  be 
drawn  as  to  which  of  the  Judges  entitled  to  sit  according  to  the  rota  shall 
withdraw.  This  arrangement  does  not  affect  the  Judge  appointed  by  the 
other  belligerent. 

Article  XVII 

"No  Judge  can  sit  who  has  been  a  party,  in  any  way  whatever,  to  the 
sentence  pronounced  by  the  National  Courts  or  has  taken  part  in  the 
case  as  counsel  or  advocate  for  one  of  the  parties. 

"No  Judge  or  Deputy  Judge  can,  during  his  tenure  of  office,  appear 
as  agent  or  advocate  before  the  International  Prize-Court  nor  act  for 
one  of  the  parties  in  any  capacity  whatever. 

Article  XVIII 

"The  belligerent  captor  is  entitled  to  appoint  a  naval  officer  of  high 
rank  to  sit  as  Assessor  but  with  no  voice  in  the  decision.  A  neutral 
Power  which  is  a  party  to  the  proceedings  or  whose  subject  or  citizen 
is  a  party  has  the  same  right  of  appointment;  if  as  the  result  of  this  last 
provision  more  than  one  Power  is  concerned,  they  must  agree  among 
themselves,  if  necessary  by  lot,  on  the  officer  to  be  appointed. 

Article  XIX 

"The  Court  elects  its  President  and  Vice-President  by  an  absolute 
majority  of  the  votes  cast.  After  two  ballots,  the  election  is  made  by  a 
bare  majority  and,  in  case  the  votes  are  equal,  by  lot. 

Article  XX 

"The  Judges  on  the  International  Prize-Court  are  entitled  to  travelling 
allowances  in  accordance  with  the  regulations  in  force  in  their  own  coun- 
try and  in  addition  receive,  while  the  Court  is  sitting  or  while  they  are 
carrying  out  duties  conferred  upon  them  by  the  Court,  a  sum  of  100  Neth- 
erland  florins  per  diem. 

"These  payments  are  included  in  the  general  expenses  of  the  Court 
dealt  with  in  Article  XLVII  and  are  paid  through  the  International 
Bureau  established  by  the  Convention  of  the  29th  July,  1899. 

"The  Judges  may  not  receive  from  their  own  Government  or  from  that 
of  any  other  Power  any  remuneration  in  their  capacity  of  members  of 
the  Court. 


APPENDIX  III  525 


Article  XXI 

"The  seat  of  the  International  Prize-Court  is  at  The  Hague,  and  it 
cannot,  except  in  the  case  ot  force  majeure,  be  transferred  elsewhere  with- 
out the  consent  of  the  belligerents. 

Article  XXII 

"The  Administrative  Council  fulfils,  with  regard  to  the  International 
Prize-Court,  the  same  functions  as  to  the  Permanent  Court  of  Arbitration, 
but  only  Representatives  of  Contracting  Powers  will  be  members  of  it. 

Article  XXIII 

"The  International  Bureau  acts  as  registry  to  the  International  Prize- 
Court  and  must  place  its  offices  and  staff  at  the  disposal  of  the  Court. 
It  has  charge  of  the  archives  and  carries  out  the  administrative  work. 

"The  Secretary-General  of  the  International  Bureau  acts  as  Registrar. 

"The  necessary  secretaries  to  assist  the  Registrar,  translators,  and  short- 
hand writers  are  appointed  and  sworn  in  by  the  Court. 

Article  XXIV 

"The  Court  determines  which  language  it  will  itself  use  and  what  lan- 
guages may  be  used  before  it,  but  the  official  language  of  the  National 
Courts  which  have  had  cognizance  of  the  case  may  always  be  used  before 
the  Court. 

Article  XXV 

"Powers  which  are  concerned  in  a  case  may  appoint  special  agents  to 
act  as  intermediaries  between  themselves  and  the  Court.  They  may  also 
engage  counsel  or  advocates  to  defend  their  rights  and  interests. 

Article  XXVI 

"A  private  person  concerned  in  a  case  will  be  represented  before  the 
Court  by  an  attorney,  who  must  be  either  an  advocate  qualified  to  plead 
before  a  Court  of  Appeal  or  a  High  Court  of  one  of  the  Contracting  States, 
or  a  lawyer  practising  before  a  similar  Court,  or,  lastly,  a  professor  of  law 
at  one  of  the  higher  teaching  centres  of  those  countries. 

Article  XXVII 

"For  all  notices  to  be  served,  in  particular  on  the  parties,  witnesses,  or 
experts,  the  Court  may  apply  direct  to  the  Government  of  the  State  on 
whose  territory  the  service  is  to  be  carried  out.  The  same  rule  applies 
in  the  case  of  steps  being  taken  to  procure  evidence. 

"The  requests  for  this  purpose  are  to  be  executed  so  far  as  the  means 
at  the  disposal  of  the  Power  applied  to  under  its  municipal  law  allow. 
They  cannot  be  rejected  unless  the  Power  in  question  considers  them  cal- 
culated to  impair  its  sovereign  rights  or  its  safety.    If  the  request  is  com- 


526  APPENDIX  III 

plied  with,  the  fees  charged  must  only  comprise  the  expenses  actually 
incurred. 

"The  Court  is  equally  entitled  to  act  through  the  Power  on  whose 
territory  it  sits. 

"Notices  to  be  given  to  parties  in  the  place  where  the  Court  sits  may 
be  served  through  the  International  Bureau. 

Part  III — Procedure  in  the  International  Prize-Cowi 
Article  XXVIII 

"An  appeal  to  the  International  Prize-Court  is  entered  by  means  of  a 
written  declaration  made  in  the  National  Court  which  has  already  dealt 
with  the  case  or  addressed  to  the  International  Bureau;  in  the  latter  case 
the  appeal  can  be  entered  by  telegram. 

"The  period  within  which  the  appeal  must  be  entered  is  fixed  at  120 
days,  counting  from  the  day  the  decision  is  delivered  or  notified  (Article 
II,  paragraph  2). 

Article  XXIX 

"If  the  notice  of  appeal  is  entered  in  the  National  Court,  this  Court, 
without  considering  the  question  whether  the  appeal  was  entered  in  due 
time,  will  transmit  within  seven  days  the  record  of  the  case  to  the  Inter- 
national Bureau. 

"If  the  notice  of  the  appeal  is  sent  to  the  International  Bureau,  the 
Bureau  will  immediately  inform  the  National  Court,  when  possible  by 
telegraph.  The  latter  will  transmit  the  record  as  provided  in  the  pre- 
ceding paragraph. 

"When  the  appeal  is  brought  by  a  neutral  individual  the  International 
Bureau  at  once  informs  by  telegraph  the  individual's  Government,  in 
order  to  enable  it  to  enforce  the  rights  it  enjoys  under  Article  IV,  para- 
graph 2. 

Article  XXX 

"In  the  case  provided  for  in  Article  VI,  paragraph  2,  the  notice  of 
appeal  can  be  addressed  to  the  International  Bureau  only.  It  must  be 
entered  within  thirty  days  of  the  expiration  of  the  period  of  two  years. 

Article  XXXI 

"If  the  appellant  does  not  enter  his  appeal  within  the  period  laid  down 
in  Articles  XXVIII  or  XXX,  it  shall  be  rejected  without  discussion. 

"Provided  that  he  can  show  that  he  was  prevented  from  so  doing  by 
forct  majeure,  and  that  the  appeal  was  entered  within  sixty  days  after  the 
circumstances  which  prevented  him  entering  it  before  had  ceased  to  op- 
erate, the  Court  can,  after  hearing  the  respondent,  grant  reUef  from  the 
effect  of  the  above  provision. 


APPENDIX  III  527 


Article  XXXII 

"If  the  appeal  is  entered  in  time,  a  certified  copy  of  the  notice  of  appeal 
is  forthwith  officially  transmitted  by  the  Court  to  the  respondent. 

Article  XXXIII 

"If,  in  addition  to  the  parties  who  are  before  the  Court,  there  are  other 
parties  concerned  who  are  entitled  to  appeal,  or  if,  in  the  case  referred  to 
in  Article  XXIX,  paragraph  3,  the  Government  who  has  received  notice 
of  an  appeal  has  not  announced  its  decision,  the  Court  will  await,  before 
dealing  with  the  case,  the  expiration  of  the  period  laid  down  in  Articles 
XXVIII  or  XXX. 

Article  XXXIV 

"The  procedure  before  the  International  Court  includes  two  distinct 
parts;  the  written  pleadings  and  oral  discussions. 

"The  written  pleadings  consist  of  the  deposit  and  exchange  of  cases, 
counter  cases,  and,  if  necessary,  of  replies,  of  which  the  order  is  fixed  by 
the  Court,  as  also  the  periods  within  which  they  must  be  delivered.  The 
parties  annex  thereto  all  papers  and  documents  of  which  they  intend  to 
make  use. 

"A  certified  copy  of  every  document  produced  by  one  party  must  be 
communicated  to  the  other  party  through  the  medium  of  the  Court. 

Article  XXXV 

"After  the  close  of  the  pleadings,  a  public  sitting  is  held  on  a  day  fixed 
by  the  Court. 

"At  this  sitting  the  parties  state  their  view  of  the  case  both  as  to  the 
law  and  as  to  the  facts. 

"The  Court  may,  at  any  stage  of  the  proceedings,  suspend  speeches 
of  counsel,  either  at  the  request  of  one  of  the  parties  or  on  their  own 
initiative,  in  order  that  supplementary  evidence  may  be  obtained. 

Article  XXXVI 

"The  International  Court  may  order  the  supplementary  evidence  to 
be  taken  either  in  the  manner  provided  by  Article  XXVII  or  before 
itself  or  one  or  more  of  the  members  of  the  Court,  provided  that  this 
can  be  done  without  resort  to  compulsion  or  the  use  of  threats. 

"If  steps  are  to  be  taken  for  the  purpose  of  obtaining  evidence  by 
members  of  the  Court  outside  the  territory  where  it  is  sitting,  the  consent 
of  the  foreign  Government  must  be  obtained. 

Article  XXXVII 

"The  parties  are  summoned  to  take  part  in  all  3t»jes  ot  the  proceed- 
ings and  receive  certified  copies  of  the  Minutes. 


628  APPENDIX  III 

Article  XXXVIII 

"The  discussions  are  under  the  control  of  the  President  or  Vice-Presi- 
dent or,  in  case  they  are  absent  or  cannot  act,  of  the  senior  Judge  present. 
"The  Judge  appointed  by  a  belHgerent  party  cannot  preside. 

Article  XXXIX 

"The  discussions  take  place  in  public,  subject  to  the  right  of  a  Govern- 
ment who  is  a  party  to  the  case  to  demand  that  they  be  held  in  private. 

"Minutes  are  taken  of  these  discussions  and  signed  by  the  President 
and  Registrar,  and  these  Minutes  alone  have  an  authentic  character. 

Article  XL 

"If  a  party  does  not  appear,  despite  the  fact  that  he  has  been  duly 
cited,  or  if  a  party  fails  to  comply  with  some  step  within  the  period  fixed 
by  the  Court,  the  case  proceeds  without  that  party,  and  the  Court  gives 
judgment  in  accordance  with  the  material  at  its  disposal. 

Article  XLI 

"The  Court  officially  notifies  to  the  parties  Decrees  or  decisions  made 
in  their  absence. 

/  Article  XLII 

"The  Court  takes  into  consideration  in  arriving  at  its  decision  all  the 
facts,  evidence,  and  oral  statements. 

Article  XLIII 

"The  Court  considers  its  decision  in  private  and  the  proceedings  are 
secret. 

"All  questions  are  decided  by  a  majority  of  the  Judges  present.  If 
the  number  of  Judges  is  even  and  equally  divided,  the  vote  of  the  junior 
Judge  in  the  order  of  precedence  laid  down  in  Article  Xll,  paragraph  1, 
is  not  counted. 

Article  XLIV 

"The  judgment  of  the  Court  must  give  the  reasons  on  which  it  is  based. 
It  contains  the  names  of  the  Judges  taking  part  in  it,  and  also  of  the 
Assessors,  if  any;  it  is  signed  by  the  President  and  Registrar. 

Article  XLV 

"The  sentence  is  pronounced  in  public  sitting,  the  parties  concerned 
being  present  or  duly  summoned  to  attend;  the  sentence  is  officially 
communicated  to  the  parties. 

"When  this  communication  has  been  made,  the  Court  transmits  to  the 
National  Prize-Court  the  record  of  the  case,  together  with  copies  of  the 
various  decisions  arrived  at  and  of  the  Minutes  of  the  proceedings. 


APPENDIX  III  529 

Article  XLVI 

"Each  party  pays  its  own  costs. 

"The  party  against  whom  the  Court  decides  bears,  in  addition,  the 
costs  of  the  trial,  and  also  pays  1  per  cent  of  the  value  of  the  subject- 
matter  of  the  case  as  a  contribution  to  the  general  expenses  of  the  Inter- 
national Court.  The  amount  of  these  payments  is  fixed  in  the  judgment 
of  the  Court. 

"If  the  appeal  is  brought  by  an  individual,  he  will  furnish  the  Interna- 
tional Bureau  with  security  to  an  amount  fixed  by  the  Court  for  the  pur- 
pose of  guaranteeing  eventual  fulfilment  of  the  two  obligations  mentioned 
in  the  preceding  paragraph.  The  Court  is  entitled  to  postpone  the  open- 
ing of  the  proceedings  until  the  security  has  been  furnished. 

Article  XLVII 

"The  general  expenses  of  the  International  Prize-Court  are  borne  by 
the  Contracting  Powers  in  proportion  to  their  share  in  the  composition 
of  the  Court  as  laid  down  in  Article  XV  and  in  the  annexed  Table.  The 
appointment  of  Deputy  Judges  does  not  involve  any  contribution. 

"The  Administrative  Council  applies  to  the  Powers  for  the  funds  req- 
uisite for  the  working  of  the  Coiu-t. 

Article  XLVIII 

"When  the  Court  is  not  sitting,  the  duties  conferred  upon  it  by  Article 
XXXII,  Article  XXXIV,  paragraphs  2  and  3,  Article  XXXV,  para- 
graph 1,  and  Article  XLVI,  paragraph  3,  are  discharged  by  a  delegation 
of  three  Judges  appointed  by  the  Court.  This  delegation  decides  by  a 
majority  of  votes. 

Article  XLIX 

"The  Court  itself  draws  up  its  own  rules  of  procedure,  which  must  be 
communicated  to  the  Contracting  Powers. 

"It  will  meet  to  elaborate  these  rules  within  a  year  of  the  ratification 
of  the  present  Convention. 

Article  L 

"The  Court  may  propose  modifications  in  the  provisions  of  the  present 
Convention  concerning  procedure.  These  proposals  are  communicated, 
through  the  medium  of  the  Netherland  Government,  to  the  Contracting 
Powers,  which  will  consider  together  as  to  the  measures  to  be  taken. 

Part  IV — Final  Promsiona 

Article  LI 

"The  present  Convention  does  not  apply  as  of  right  e.xcept  when  the 
belligerent  Powers  are  all  parties  to  the  Convention. 

"It  is  further  fully  understood  that  an  appeal  to  the  International 


530  APPENDIX  III 

Prize-Court  can  only  be  brought  by  a  Contracting  Power  or  the  subject 
or  citizen  of  a  Contracting  Power. 

"In  the  cases  mentioned  in  Article  V  the  appeal  is  only  admitted  when 
both  the  owner  and  the  person  entitled  to  represent  him  are  equally  Con- 
tracting Powers  or  the  subjects  or  citizens  of  Contracting  Powers. 

Article  LII 

"The  present  Convention  shall  be  ratified  and  the  ratifications  shall 
be  deposited  at  The  Hague  as  soon  as  all  the  Powers  mentioned  in  Article 
XV  and  in  the  Table  annexed  are  in  a  position  to  do  so.  | 

"The  deposit  of  the  ratifications  shalltake  place  in  any  case  on  the  ] 
30th  June,  1909,  if  the  Powers  which  are  ready  to  ratify  furnish  nine 
Judges  and  nine  Deputy  Judges  to  the  Court,  qualified  to  validly  consti- 
tute a  Court.     If  not,  the  deposit  shall  be  postponed  until  this  condition 
is  fulfilled. 

"A  Minute  of  the  deposit  of  ratifications  shall  be  drawTi  up,  of  which  a 
certified  copy  shall  be  forwarded,  through  the  diplomatic  channel,  to  each 
of  the  Powers  referred  to  in  the  first  paragraph. 

Article  LIII 

"The  Powers  referred  to  in  Article  XV  and  in  the  Table  annexed  are 
entitled  to  sign  the  present  Convention  up  to  the  deposit  of  the  ratifica- 
tions contemplated  in  paragraph  2  of  the  preceding  Article. 

"After  this  deposit  they  can  at  any  time  adhere  to  it  purely  and  sim- 
ply. A  Power  wishing  to  adhere  notifies  its  intention  in  writing  to  the 
Netherland  Government,  transmitting  to  it  at  the  same  time  the  act  of 
adhesion,  which  shall  be  deposited  in  the  archives  of  the  said  Government. 
The  latter  shall  send,  through  the  diplomatic  channel,  a  certified  copy 
of  the  notification  and  of  the  act  of  adhesion  to  all  the  Powers  referred  to 
in  the  preceding  paragraph,  informing  them  of  the  date  on  which  it  has 
received  the  notification. 

Article  LIV 

"The  present  Convention  shall  come  into  force  six  months  from  the 
deposit  of  the  ratifications  contemplated  in  Article  LII,  paragraphs  1 
and  2.  i 

"The  adhesions  shall  take  effect  sixty  days  after  notification  of  such 
adhesion  has  been  received  by  the  Netherland  Government  or  as  soon  as 
possible  on  the  expiration  of  the  period  contemplated  in  the  preceding 
paragraph. 

"The  International  Coiu't  shall,  however,  have  jurisdiction  to  deal 
with  prize  cases  decided  by  the  National  Courts  at  any  time  after  the 
deposit  of  the  ratifications  or  of  the  receipt  of  the  notification  of  the  ad- 
hesions. In  such  cases  the  period  fixed  in  Article  XXVIII,  paragraph  2, 
shall  only  be  reckoned  from  the  date  when  the  Convention  comes  into 
force  as  regards  a  Power  which  has  ratified  or  adhered.  ^ 

4 


APPENDIX  III  531 

Article  LV 

"The  present  Convention  shall  remain  in  force  for  twelve  years  from 
the  time  it  comes  into  force,  as  determined  by  Article  LIV,  paragraph  1, 
even  in  the  case  of  Powers  which  adhere  subsequently, 

"It  shall  be  renewed  tacitly  from  six  years  to  six  years  unless  denounced. 

"Denunciation  must  be  notified  in  wTiting,  at  least  one  year  before 
the  expiration  of  each  of  the  periods  mentioned  in  the  two  preceding 
paragraphs,  to  the  Netherland  Government,  wliich  will  inform  all  the 
other  Contracting  Powers. 

"Denunciation  shall  only  take  effect  in  regard  to  the  Power  which  has 
notified  it.  The  Convention  shall  remain  in  force  in  the  case  of  the  other 
Contracting  Powers,  provided  that  their  participation  in  the  appointment 
of  Judges  is  sufficient  to  allow  of  the  composition  of  the  Court  with  nine 
Judges  and  nine  Deputy  Judges. 

Article  LVI 

"In  case  the  present  Convention  is  not  in  operation  as  regards  all  the 
Powers  referred  to  in  Article  XV  and  the  annexed  Table,  the  Administra- 
tive Council  shall  draw  up  a  list  on  the  lines  of  that  Article  and  Table  of 
the  Judges  and  Deputy  Judges  through  whom  the  Contracting  Powers 
will  share  in  the  composition  of  the  Court.  The  times  allotted  by  the 
said  Table  to  Judges  who  are  summoned  to  sit  in  rota  will  be  redistributed 
between  the  different  years  of  the  six-year  period  in  such  a  way  that,  as 
far  as  possible,  the  number  of  the  Judges  of  the  Court  in  each  year  shall 
be  the  same.  If  the  number  of  Deputy  Judges  is  greater  than  that  of  the 
Judges,  the  number  of  the  latter  can  be  completed  by  Deputy  Judges 
chosen  by  lot  among  those  powers  which  do  not  nominate  a  Judge. 

"The  list  drawn  up  in  this  way  by  the  Administrative  Council  shall 
be  notified  to  the  Contracting  Powers.  It  shall  be  revised  when  the 
number  of  these  Powers  is  modified  as  the  result  of  adhesions  or  denun- 
ciations. 

"The  change  resulting  from  an  adhesion  is  not  made  until  the  1st 
January  after  the  date  on  which  the  adhesion  takes  effect,  unless  the 
adhering  Power  is  a  belligerent  Power,  in  which  case  it  can  ask  to  be  at 
once  represented  in  the  Court,  the  provision  of  Article  XVT  being,  more- 
over, applicable  if  necessary. 

"When  the  total  number  of  Judges  is  less  than  eleven,  seven  Judges 
form  a  quorum. 

Article  LVII 

"Two  years  before  the  expiration  of  each  period  referred  to  in  paragraphs 
1  and  2  of  Article  LV  any  Contracting  Power  can  demand  a  modification 
of  the  provisions  of  Article  XV  and  of  the  annexed  Table,  relative  to  its 
participation  in  the  composition  of  the  Court.  The  demand  shall  be 
midressed  to  the  Administrative  Council,  which  will  examine  it  and  sub- 


532 


APPENDIX  III 


mit  to  all  the  Powers  proposals  as  to  the  measures  to  be  adopted.  The 
Powers  shall  inform  the  Administrative  Council  of  their  decision  with  the 
least  possible  delay.  The  result  shall  be  at  once,  and  at  least  one  year  and 
thirty  days  before  the  expiration  of  the  said  period  of  two  years,  communi- 
cated to  the  Power  which  made  the  demand. 

"When  necessary,  the  modifications  adopted  by  the  Powers  shall  come 
into  force  from  the  commencement  of  the  fresh  period. 

"In  faith  whereof  the  Plenipotentiaries  have  appended  their  signatures 
to  the  present  Convention. 

"Done  at  The  Hague,  the  18th  October,  1907,  in  a  single  copy,  which 
shall  remain  deposited  in  the  archives  of  the  Netherland  Government, 
and  duly  certified  copies  of  which  shall  be  sent,  through  the  diplomatic 
channel,  to  the  Powers  designated  in  Article  XV  and  in  the  Table  annexed." 


ANNEX    TO    ARTICLE    XV 

Distribution  of  Judges  and  Deputy  Judges   by   Countries  for  each   Year  of  the 

period  of  Six  Years 


Judges. 


Deputy  Judges. 


Argentina. . 
Colombia.  . 

Spain 

Greece 

Norway. . . . 
Netherlands 
Turkey .... 


First  Year 

Paraguay. 

Bolivia. 

Spain. 

Rumania. 

Sweden. 

Belgium. 

Persia. 


Second  Year 


Argentina. . . 

Spain 

Greece 

Norway 

Netherlands . 

Turkey 

Uruguay . . . . 


Panama. 

Spain. 

Rumania. 

Sweden. 

Belgium. 

Luxemburg. 

Costa  Rica. 


Brazil 

China 

Spain 

Netherlands 
Rumania. . . 
Sweden .... 
Venezuela. . 


Third  Year 

Santo  Domingo. 

Turkey. 

Portugal. 

Switzerland. 

Greece. 

Denmark. 

Haiti. 


Judges. 


Deputy  Judges. 


Fourth  Year 


Brazil 

China 

Spain 

Peru 

Rumania.  . . 
Sweden. . . . 
Switzerland . 


Fifth 


Belgium. . 
Bulgaria . . 

Chile 

Denmark . 
Mexico. . . 
Persia .... 
Portugal . 


Guatemala. 

Turkey. 

Portugal. 

Honduras. 

Greece. 

Denmark. 

Netherlands. 

Year 

Netherlands. 

Montenegro. 

Nicaragua. 

Norway. 

Cuba. 

China. 

Spain. 


Belgium. . 

Chile 

Denmark . 
Mexico. . . 
Portugal . 

Servia 

Slam 


Sixth  Year 

Netherlands. 

Salvador. 

Norway. 

Ecuador. 

Spain. 

Bulgaria. 

China. 


"In  Executive  Session, 
"Senate  of  the  United  States. 
"Resolved  (two  thirds  of   the   Senators   present   concurring   therein), 
That  the  Senate  advise  and  consent  to  the  ratification  of  the  convention 
for  an  international  prize-court  signed  at  The  Hague  on  the  18th  day  of 


APPENDIX  III  533 

October,  1907,  and  at  the  same  time  to  the  ratification,  as  forming  an 
integral  part  of  the  said  convention,  of  the  protocol  thereto,  signed  at  The 
Hague  on  the  19th  day  of  September,  1910,  and  transmitted  to  the  Senate 
by  the  President  on  the  2d  day  of  February,  1911:  Provided,  That  it  is 
the  understanding  of  the  Senate  and  is  a  condition  of  its  consent  and  ad- 
vice that  in  the  instrument  of  ratification  the  United  States  of  America 
shall  declare  that  in  prize  cases  recourse  to  the  International  Court  of 
Prize  can  only  be  exercised  against  it  in  the  form  of  an  action  in  damages 
for  the  injuries  caused  by  the  capture." 

[Tranilation] 
Additional  Protocol  to  the  Convention  Relative  to  the  Estab- 

USHMENT  OF   AN   INTERNATIONAL   CoURT   OF   PrIZE 

"Germany,  the  United  States  of  America,  the  Argentine  Republic, 
Austria-Hungary,  Chile,  Denmark,  Spain,  France,  Great  Britain,  Japan, 
Norway,  the  Netherlands,  Sweden,  powers  signatory  to  The  Hague  Con- 
vention dated  October  IS,  1907,  for  the  establishment  of  an  international 
court  of  prize,  considering  that  for  some  of  these  powers  difficulties  of  a 
constitutional  nature  prevent  the  acceptance  of  the  said  convention,  in 
its  present  form,  have  deemed  it  expedient  to  agree  upon  an  additional 
protocol  taking  into  account  these  difficulties  without  jeopardizing  any 
legitimate  interest  and  have,  to  that  end,  appointed  as  their  plenipoten- 
tiaries, to  wit: 


"Who,  after  depositing  their  full  powers,  found  to  be  in  good  and  due 
form,  have  agreed  upon  the  following: 

"Article  1.  The  powers  signatory  or  adhering  to  The  Hague  Con- 
vention of  October  18,  1907,  relative  to  the  establishment  of  an  interna- 
tional court  of  prize,  which  are  prevented  by  difficulties  of  a  constitutional 
nature  from  accepting  the  said  convention  in  its  present  form,  have  the 
right  to  declare  in  the  instrument  of  ratification  or  adherence  that  in  prize 
cases,  wherefore  their  national  courts  have  jurisdiction,  recourse  to  the 
international  court  of  prize  can  only  be  exercised  against  them  in  the  form 
of  an  action  in  damages  for  the  injury  caused  by  the  capture. 

"Art.  2.  In  the  case  of  recourse  to  the  international  court  of  prize, 
in  the  form  of  an  action  for  damages,  article  8  of  the  convention  is  not 
applicable;  it  is  not  for  the  court  to  pass  upon  the  validity  or  the  nullity 
of  the  capture,  nor  to  reverse  or  affirm  the  decision  of  the  national  tribunals. 

"If  the  capture  is  considered  illegal,  the  court  determines  the  amount 
of  damages  to  be  allowed,  if  any,  to  the  claimants. 

"Art.  3.  The  conditions  to  which  recourse  to  the  international  court 
of  prize  is  subject  by  the  convention  are  applicable  to  the  action  in  dam- 
ages. 

"Art.  4.    Under  reserve  of  the  provisions  hereinafter  stated  the  rules 


534  APPENDIX  III 

of  procedure  established  by  the  convention  for  recourse  to  the  international 
court  of  prize  shall  be  observed  in  the  action  in  damages. 

"Art.  5.  In  derogation  of  article  28,  paragraph  1,  of  the  convention, 
the  suit  for  damages  can  only  be  brought  before  the  international  court 
of  prize  by  means  of  a  written  declaration  addressed  to  the  International 
Bureau  of  the  Permanent  Court  of  Arbitration;  the  case  may  even  be 
brought  before  the  bureau  by  telegram. 

"Art.  6.  In  derogation  of  article  29  of  the  convention  the  interna- 
tional bureau  shall  notify  directly,  and  if  possible  by  telegram,  the  Govern- 
ment of  the  belligerent  captor  of  the  declaration  of  action  brought  before 
it. 

"The  Government  of  the  belligerent  captor,  without  considering  whether 
the  prescribed  periods  of  time  have  been  observed,  shall,  within  seven 
days  of  the  receipt  of  the  notification,  transmit  to  the  international  bureau 
the  case,  appending  thereto  a  certified  copy  of  the  decision,  if  any,  rendered 
by  the  national  tribunal. 

"Art.  7.  In  derogation  of  article  45,  paragraph  2,  of  the  convention 
the  court  rendering  its  decision  and  notifying  it  to  the  parties  to  the  suit 
shall  send  directly  to  the  Government  of  the  belligerent  captor  the  record 
of  the  case  submitted  to  it,  appending  thereto  a  copy  of  the  various  inter- 
vening decisions  as  well  as  a  copy  of  the  minutes  of  the  preliminary  pro- 
ceedings. 

"Art.  8.  The  present  additional  protocol  shall  be  considered  as  form- 
ing an  integral  part  of  and  shall  be  ratified  at  the  same  time  as  the  con- 
vention. 

"If  the  declaration  provided  for  in  article  1  herein  above  is  made  in 
the  instrument  of  the  ratification,  a  certified  copy  thereof  shall  be  in- 
serted in  the  proc&s  verbal  of  the  deposit  of  ratifications  referred  to  in 
article  52,  paragraph  3,  of  the  convention. 

"Art.  9.  Adherence  to  the  convention  is  subordinated  to  adherence 
to  the  present  additional  protocol. 

"In  faith  of  which  the  plenipotentiaries  have  aflBxed  their  signaturea 
to  the  present  additional  protocol." 


APPENDIX  IV 

1909 

International  Naval  Conference 

Signed  at  London  Febniary  26,   1909;    ratification  advised  by  the  Senate 

April  24,  1912 

The  text  of  this  convention  is  taken  from  the  copy  printed  for  the 
use  of  the  Senate  of  the  United  States. 

[Translaiion] 

DECLARATION  CONCERNING  THE  LAWS  OF  NAVAL 

WARFARE 

"His  Majesty  the  German  Emperor,  King  of  Prussia;  the  President  of 
the  United  States  of  America;  His  Majesty  the  Emperor  of  Austria,  King 
of  Bohemia,  etc.,  and  Apostolic  King  of  Hungary;  His  Majesty  the  King  of 
Spain;  the  President  of  the  French  Republic;  His  Majesty  the  King  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  and  of  the  British  Do- 
minions beyond  the  Seas,  Emperor  of  India;  His  Majesty  the  King  of 
Italy;  His  Majesty  the  Emperor  of  Japan;  Her  Majesty  the  Queen  of  the 
Netherlands;   His  Majesty  the  Emperor  of  All  the  Russias. 

"Having  regard  to  the  terms  in  which  the  British  Government  invited 
various  Powers  to  meet  in  conference  in  order  to  arrive  at  an  agreement 
as  to  what  are  the  generally  recognized  rules  of  international  law  within 
the  meaning  of  Article  7  of  the  Convention  of  18th  October,  1907,  relative 
to  the  establishment  of  an  International  Prize-Court; 

"Recognizing  all  the  advantages  which  an  agreement  as  to  the  said 
rules  would,  in  the  unfortunate  event  of  a  naval  war,  present,  both  as 
regards  peaceful  commerce  and  as  regards  the  belligerents  and  their  diplo- 
matic relations  with  neutral  Governments; 

"Having  regard  to  the  divergence  often  found  in  the  methods  by  which 
it  is  sought  to  apply  in  practice  the  general  principles  of  international  law; 

"Animated  by  the  desire  to  insure  henceforward  a  greater  measure  of 
uniformity  in  this  respect; 

"Hoping  that  a  work  so  important  to  the  common  welfare  will  meet 
with  general  approval; 

"Have  appointed  as  tlieir  Plenipotentiaries,  etc.,  etc. 

635 


636  APPENDIX  IV 

Preliminary  Provision 

"The  Signatory  Powers  are  agreed  that  the  rules  contained  in  the  fol- 
lowing Chapters  correspond  in  substance  with  the  generally  recognized 
principles  of  international  law. 

Chapter  I — Blockade  in  Time  of  War 

Article  1 

"A  blockade  must  not  extend  beyond  the  ports  and  coasts  belonging 
to  or  occupied  by  the  enemy. 

Article  2 

"In  accordance  with  the  Declaration  of  Paris  of  1856,  a  blockade,  in 
order  to  be  binding,  must  be  effective — that  is  to  say,  it  must  be  main- 
tained by  a  force  sufficient  really  to  prevent  access  to  the  enemy  coast- 
line. 

Article  3 
"The  question  whether  a  blockade  is  effective  is  a  question  of  fact. 

Article  4 

"A  blockade  is  not  regarded  as  raised  if  the  blockading  force  is  tem- 
porarily withdrawn  on  account  of  stress  of  weather. 

Article  5 
"A  blockade  must  be  applied  impartially  to  the  ships  of  all  nations. 

Article  6 

"The  Commander  of  a  blockading  force  may  give  permission  to  a  war- 
ship to  enter,  and  subsequently  to  leave,  a  blockaded  port. 

Article  7 

"In  circumstances  of  distress,  acknowledged  by  an  officer  of  the  block- 
ading force,  a  neutral  vessel  may  enter  a  place  under  blockade  and  sub- 
sequently leave  it,  provided  that  she  has  neither  discharged  nor  shipped 
any  cargo  there. 

Article  8 

"A  blockade,  in  order  to  be  binding,  must  be  declared  in  accordance 
with  Article  9  and  notified  in  accordance  with  Articles  11  and  16. 

Article  9 

"A  declaration  of  blockade  is  made  either  by  the  blockading  Power  or 
by  the  naval  authorities  acting  in  its  name 
"It  specifies — 


APPENDIX  IV  537 

"  (1)  The  date  when  the  blockade  begins; 

"(2)  The  geographical  limits  of  the  coast-line  under  blockade; 

"  (3)  The  period  within  which  neutral  vessels  may  come  out. 

Article  10 
"If  the  operations  of  the  blockading  Power,  or  of  the  naval  authori- 
ties acting  in  its  name,  do  not  tally  with  the  particulars,  which,  in  accor- 
dance with  Article  9  (1)  and  (2),  must  be  inserted  in  the  declaration  of 
blockade,  the  declaration  is  void  and  a  new  declaration  is  necessary  in 
order  to  make  the  blockade  operative. 

Article  11 

"A  declaration  of  blockade  is  notified — 

"(1)  To  neutral  Powers  by  the  blockading  Power  by  means  of  a  com- 
munication addressed  to  the  Government  direct  or  to  their  representa- 
tives accredited  to  it; 

"  (2)  To  the  local  authorities  by  the  officer  commanding  the  blockad- 
ing force.  The  local  authorities  will,  in  turn,  inform  the  foreign  consular 
officers  at  the  port  or  on  the  coast-line  under  blockade  as  soon  as  possible. 

Article  12 
"The  rules  as  to  declaration  and  notification  of  blockade  apply  to  cases 
where  the  limits  of  a  blockade  are  extended  or  where  a  blockade  is  re- 
established after  having  been  raised. 

Article  13 
"The  voluntary'  raising  of  a  blockade,  as  also  any  restriction  in  the 
limits  of  a  blockade,  must  be  notified  in  the  manner  prescribed  by  Article 
11. 

Article  14 
"The  liability  of  a  neutral  vessel  to  capture  for  breach  of  blockade  is 
contingent  on  her  knowledge,  actual  or  presumptive,  of  the  blockade. 

Article  15 
"Failing  proof  to  the  contrary,  knowledge  of  the  blockade  is  presumed 
if  the  vessel  left  a  neutral  port  subsequently  to  the  notification  of  the 
blockade  to  the  Power  to  which  such  port  belongs,  provided  that  such 
notification  was  made  in  sufficient  time. 

Article  16 
"If  a  vessel  approaching  a  blockaded  port  has  no  knowledge,  actual 
or  presumptive,  of  the  blockade,  the  notification  must  be  made  to  the 
vessel  itself  by  an  officer  of  one  of  the  ships  of  the  blockading  force.  This 
notification  should  be  entered  in  the  vessel's  log-book  and  must  state  the 
day  and  hour  and  the  geographical  position  of  the  vessel  at  the  time. 


538  APPENDIX  IV 

"If,  through  the  negligence  of  the  officer  commanding  the  blockading 
force,  no  declaration  of  blockade  has  been  notified  to  the  local  authorities, 
or  if,  in  the  declaration,  as  notified,  no  period  has  been  mentioned  within 
which  neutral  vessels  may  come  out,  a  neutral  vessel  coming  out  of  the 
blockaded  port  must  be  allowed  to  pass  free. 

Article  17 

"Neutral  vessels  may  not  be  captured  for  breach  of  blockade  except 
within  the  area  of  operations  of  the  war-ships  detailed  to  render  the  block- 
ade effective. 

Article  18 

"The  blockading  forces  must  not  bar  access  to  neutral  ports  or  coasts. 

Article  19 

"Whatever  may  be  the  ulterior  destination  of  a  vessel  or  of  her  cargo, 
she  cannot  be  captured  for  breach  of  blockade,  if,  at  the  moment,  she  is 
on  her  way  to  a  non-blockaded  port. 

Article  20 

"A  vessel  which  has  broken  blockade  outwards  or  which  has  attempted 
to  break  blockade  inwards  is  liable  to  capture  so  long  as  she  is  pursued 
by  a  ship  of  the  blockading  force.  If  the  pursuit  is  abandoned,  or  if  the 
blockade  is  raised,  her  capture  can  no  longer  be  effected. 

Article  21 

"A  vessel  found  guilty  of  breach  of  blockade  is  liable  to  condemnation. 
The  cargo  is  also  condemned,  unless  it  is  proved  that  at  the  time  of  the 
shipment  of  the  goods  the  shipper  neither  knew  nor  could  have  known  of 
the  intention  to  break  the  blockade. 

Chapter  II — Contraband  of  War 

Article  22 

"The  following  articles  may,  without  notice,'  be  treated  as  contraband, 
under  the  name  of  absolute  contraband : 

"(1)  Arms  of  all  kinds,  including  arms  for  sporting  purposes,  and  their 
distinctive  component  parts. 

"  (2)  Projectiles,  charges,  and  cartridges  of  all  kinds  and  their  distinc- 
tive comp>onent  parts. 

"  (3)  Powder  and  explosives  specially  prepared  for  use  in  war. 

"  (4)  Gun-mountings,  limber-boxes,  limbers,  military  wagons,  field  forges, 
and  their  distinctive  component  parts. 

^  In  view  of  the  difficulty  of  finding  an  exact  equivalent  in  English  for 
the  expression  "de  plein  droit,"  it  has  been  decided  to  translate  it  by  the 
words  "without  notice,"  which  represent  the  meaning  attached  to  it  by 
the  draughtsman  as  appears  from  the  General  Report. 


APPENDIX  IV  539 

*'(5)  Clothing  and  equipment  of  a  distinctively  military  character. 

"(6)  All  kinds  of  harness  of  a  distinctively  military  character. 

"(7)  Saddle,  draught,  and  pack  animals  suitable  for  use  in  war. 

"(8)  Articles  of  camp  equipment,  and  their  distinctive  component 
parts. 

"(9)  Armor-plates. 

"(10)  Warships,  including  boats,  and  their  distinctive  component  parts 
of  such  a  nature  that  they  can  only  be  used  on  a  vessel  of  war. 

"(11)  Implements  and  apparatus  designed  exclusively  for  the  manu- 
facture of  munitions  of  war,  for  the  manufacture  or  repair  of  arms,  or  war 
material  for  use  on  land  or  sea. 

Article  23 

"Articles  exclusively  used  for  war  may  be  added  to  the  list  of  absolute 
contraband  by  a  declaration,  which  must  be  notified. 

"Such  notification  must  be  addressed  to  the  Governments  of  other 
Powers,  or  to  their  representatives  accredited  to  the  Power  making  the 
declaration.  A  notification  made  after  the  outbreak  of  hostilities  is 
addressed  only  to  neutral  Powers. 

Article  24 

"The  following  articles,  susceptible  of  use  in  war  as  well  as  for  pur- 
poses of  peace,  may,  without  notice,^  be  treated  as  contraband  of  war, 
under  the  name  of  conditional  contraband: 

"(1)  Foodstuffs. 

"(2)  Forage  and  grain,  suitable  for  feeding  animals 

"(3)  Clothing,  fabrics  for  clothing,  and  boots  and  shoes,  suitable  for 
use  in  war. 

"(4)  Gold  and  silver  in  coin  or  bullion;  paper  money. 

"  (5)  Vehicles  of  all  kinds  available  for  use  in  war  and  their  component 
parts. 

"(6)  Vessels,  craft,  and  boats  of  all  kinds;  floating  docks,  parts  of 
docks,  and  their  component  parts. 

"(7)  Railway  material,  both  fi.xed  and  rolling-stock,  and  material  for 
telegraphs,  wireless  telegraphs,  and  telephones. 

"(8)  Balloons  and  flying-machines  and  their  distinctive  component 
parts,  together  with  accessories  and  articles  recognizable  as  intended  for 
use  in  connection  with  balloons  and  flying-machines. 

"(9)  Fuel;  lubricants. 

"(10)  Powder  and  explosives  not  specially  prepared  for  use  in  war. 

"(11)  Barbed  wire  and  implements  for  fixing  and  cutting  the  same. 

"(12)  Horseshoes  and  shoeing  materials. 

"(13)  Harness  and  saddlery. 

"(14)  Field-Glasses,  telescopes,  chronometers,  and  all  kinds  of  nav» 
tical  instruments. 

*  See  note  on  Article  22. 


540  APPENDIX  IV 


Article  25 

"Articles  susceptible  of  use  in  war  as  well  as  for  purposes  of  peace, 
other  than  those  enumerated  in  Articles  22  and  24,  may  be  added  to  the 
list  of  conditional  contraband  by  a  declaration,  which  must  be  notified 
in  the  manner  provided  for  in  the  second  paragraph  of  Article  23. 

Article  26 

"If  a  Power  waives,  so  far  as  it  is  concerned,  the  right  to  treat  as  con- 
traband of  war  an  article  comprised  in  any  of  the  classes  enumerated  in 
Articles  22  and  24,  such  intention  shall  be  announced  by  a  declaration, 
which  must  be  notified  in  the  manner  provided  for  in  the  second  paragraph 
of  Article  23. 

Article  27 

"Articles  which  are  not  susceptible  of  use  in  war  may  not  be  declared 
contraband  of  war. 

Article  28 

"The  following  may  not  be  declared  contraband  of  war: 

"(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other  raw  materials 
of  the  textile  industries,  and  yarns  of  the  same. 

"(2)  Oil-seeds  and  nuts;  copra. 

"  (3)  Rubber,  resins,  gums,  and  lacs;  hops. 

"(4)  Rawhides  and  horns,  bones  and  ivory. 

"(5)  Natural  and  artificial  manures,  including  nitrates  and  phosphates 
for  agricultural  purposes. 

"(6)  Metallic  ores. 

"(7)  Earths,  clays,  lime,  chalk,  stone,  including  marble,  bricks,  slates, 
and  tiles. 

"(8)  Chinaware  and  glass. 

"(9)  Paper  and  paper-making  materials. 

"(10)  Soap,  paint,  and  colors,  including  articles  exclusively  used  in 
their  manufacture,  and  varnish. 

"(11)  Bleaching-powder,  soda-ash,  caustic  soda,  salt-cake,  ammonia, 
sulphate  of  ammonia,  and  sulphate  of  copper. 

"(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

"(13)  Precious  and  semiprecious  stones,  pearls,  mother-of-pearl,  and 
coral. 

"(14)  Clocks  and  watches,  other  than  chronometers. 

"(15)  Fashion  and  fancy  goods. 

"(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

"(17)  Articles  of  household  furniture  and  decoration;  oSice  furniture 
and  requisites. 


APPENDIX  IV  541 

Article  29 

''Likewise  the  following  may  not  be  treated  as  contraband  of  war: 
"(1)  Articles  serving  exclusively  to  aid  the  sick  and  wounded.     They 

can,  however,  in  case  of  urgent  military  necessity  and  subject  to  the 

payment  of  compensation,  be  requisitioned  if  their  destination  is  that 

specified  in  Article  30. 

"  (2)  Articles  intended  for  the  use  of  the  vessel  in  which  they  are  found, 

as  well  as  those  intended  for  the  use  of  her  crew  and  passengers  during 

the  voyage. 

Article  30 

"Absolute  contraband  is  liable  to  capture  if  it  is  shown  to  be  destined 
to  territory  belonging  to  or  occupied  by  the  enemy  or  to  the  armed  forces 
of  the  enemy.  It  is  immaterial  whether  the  carriage  of  the  goods  is  direct 
or  entails  transshipment  or  a  subsequent  transport  by  land. 

Article  31 

"Proof  of  the  destination  specified  in  Article  30  is  complete  in  the 
following  cases: 

"(1)  When  the  goods  are  documented  for  discharge  in  an  enemy  port 
or  for  delivery  to  the  armed  forces  of  the  enemy. 

"(2)  When  the  vessel  is  to  call  at  enemy  ports  only,  or  when  she  is  to 
touch  at  an  enemy  port  or  meet  the  armed  forces  of  the  enemy  before 
reaching  the  neutral  port  for  which  the  goods  in  question  are  documented. 

Article  32 

"Where  a  vessel  is  carrying  absolute  contraband,  her  papers  are  con- 
clusive proof  as  to  the  voyage  on  which  she  is  engaged,  unless  she  is  found 
clearly  out  of  the  course  indicated  by  her  papers  and  unable  to  give  ade- 
quate reasons  to  justify  such  deviation. 

Article  33 

"Conditional  contraband  is  liable  to  capture  if  it  is  shown  to  be  des- 
tined for  the  use  of  the  armed  forces  or  of  a  government  department  of 
the  enemy  State,  unless  in  this  latter  case  the  circumstances  show  that  the 
goods  cannot,  in  fact,  be  used  for  the  purposes  of  the  war  in  progress.  This 
latter  exception  does  not  apply  to  a  consignment  coming  under  Article 
24  (4). 

Article  34 

"The  destination  referred  to  in  Article  33  is  presumed  to  exist  if  the 
goods  are  consigned  to  enemy  authorities,  or  to  a  contractor  established 
in  the  enemy  country  who,  as  a  matter  of  common  knowledge,  supplies 
articles  of  this  kind  to  the  enemy.  A  similar  presumption  arises  if  the 
goods  are  consigned  to  a  fortified  place  belonging  to  the  enemy  or  other 


542  APPENDIX  IV 

place  serving  as  a  base  for  the  armed  forces  of  the  ememy.  No  such 
presumption,  however,  arises  in  the  case  of  a  merchant  vessel  bound  for 
one  of  these  places  if  it  is  sought  to  prove  that  she  herself  is  contraband. 

"In  cases  where  the  above  presumptions  do  not  arise,  the  destination 
is  presumed  to  be  innocent. 

"The  presumptions  set  up  by  this  Article  may  be  rebutted. 

Article  35 

"Conditional  contraband  is  not  liable  to  capture,  except  when  found 
on  board  a  vessel  bound  for  territory  belonging  to  or  occupied  by  the 
enemy,  or  for  the  armed  forces  of  the  enemy,  and  when  it  is  not  to  be 
discharged  in  an  intervening  neutral  port. 

"The  ship's  papers  are  conclusive  proof  both  as  to  the  voyage  on  which 
the  vessel  is  engaged  and  as  to  the  port  of  discharge  of  the  goods,  unless 
she  is  found  clearly  out  of  the  course  indicated  by  her  papers  and  unable 
to  give  adequate  reasons  to  justify  such  deviation. 

Article  36 

"Notwithstanding  the  provisions  of  Article  35,  conditional  contraband, 
if  shown  to  have  the  destination  referred  to  in  Article  33,  is  liable  to  cap- 
ture in  cases  where  the  enemy  country  has  no  seaboard. 

Article  37 

"A  vessel  carrying  goods  liable  to  capture  as  absolute  or  conditional 
contraband  may  be  captured  on  the  high  seas  or  in  the  territorial  waters 
of  the  belligerents  throughout  the  whole  of  her  voyage,  even  if  she  is  to 
touch  at  a  port  of  call  before  reaching  the  hostile  destination. 

Article  38 

"A  vessel  may  not  be  captured  on  the  ground  that  she  has  carried  con- 
traband on  a  previous  occasion  if  such  carriage  is,  in  point  of  fact,  at  an 
end. 

Article  39 
"Contraband  goods  are  liable  to  condemnation. 

Article  40 

"A  vessel  carrying  contraband  may  be  condemned  if  the  contraband, 
reckoned  either  by  value,  weight,  volume,  or  freight,  forms  more  than 
half  the  cargo. 

Article  41 

"If  a  vessel  carrying  contraband  is  released,  she  may  be  condemned 
to  pay  the  costs  and  expenses  incurred  by  the  captor  in  respect  of  the 
proceedings  in  the  national  prize-court  and  the  custody  of  the  ship  and 
cargo  during  the  proceedings. 


APPENDIX  IV  543 

Article  42 

"Goods  which  belong  to  the  ovvTier  of  the  contraband  and  are  on  board 
the  same  vessel  are  liable  to  condemnation. 

Article  43 

"If  a  vessel  is  encovmtered  at  sea  while  unaware  of  the  outbreak  of 
hostilities  or  of  the  declaration  of  contraband  which  applies  to  her  cargo, 
the  contraband  cannot  be  condemned  except  on  payment  of  compensa- 
tion; the  vessel  herself  and  the  remainder  of  the  cargo  are  not  liable  to 
condemnation  or  to  the  costs  and  expenses  referred  to  in  Article  41.  The 
same  rule  applies  if  the  master,  after  becoming  aware  of  the  outbreak  of 
hostilities  or  of  the  declaration  of  contraband,  has  had  no  opportunity 
of  discharging  the  contraband. 

"A  vessel  is  deemed  to  be  aware  of  the  existence  of  a  state  of  war,  or 
of  a  declaration  of  contraband,  if  she  left  a  neutral  port  subsequently  to 
the  notification  to  the  Power  to  which  such  port  belongs  of  the  outbreak 
of  hostilities  or  of  the  declaration  of  contraband  respectively,  provided 
that  such  notification  was  made  in  sufficient  time.  A  vessel  is  also  deemed 
to  be  aware  of  the  existence  of  a  state  of  war  if  she  left  an  enemy  port  after 
the  outbreak  of  hostilities. 

Article  44 

"A  vessel  which  has  been  stopped  on  the  ground  that  she  is  carrying 
contraband  and  which  is  not  liable  to  condemnation  on  account  of  the 
proportion  of  contraband  on  board  may,  when  the  circumstances  permit, 
be  allowed  to  continue  her  voyage  if  the  master  is  willing  to  hand  over 
the  contraband  to  the  belligerent  war-ship. 

"The  delivery  of  the  contraband  must  be  entered  by  the  captor  on  the 
log-book  of  the  vessel  stopped  and  the  master  must  give  the  captor  duly 
certified  copies  of  all  relevant  papers. 

"The  captor  is  at  liberty  to  destroy  the  contraband  that  has  been  handed 
over  to  him  under  these  conditions. 

Chapter  III — Unneutral  Service 

Article  45 

'  "A  neutral  vessel  will  be  condemned  and  will,  in  a  general  way,  receive 
the  same  treatment  as  a  neutral  vessel  liable  to  condemnation  for  carriage 
of  contraband: 

"  (1)  If  she  is  on  a  voyage  specially  undertaken  with  a  view  to  the  trans- 
port of  individual  passengers  who  are  embodied  in  the  armed  forces  of  the 
enemy  or  with  a  view  to  the  transmission  of  intelligence  in  the  interest  of 
the  enemy. 

"(2)  If,  to  the  knowledge  of  either  the  owner,  the  cliarterer,  or  the 
master,  she  is  transporting  a  military  detachment  of  the  enemy,  or  one  or 


544  APPENDIX  IV 

more  persons  who,  in  the  course  of  the  voyage,  directly  assist  the  operations 
of  the  enemy. 

"In  the  cases  specified  under  the  above  heads,  goods  belonging  to  the 
owner  of  the  vessel  are  likewise  liable  to  condemnation. 

"The  provisions  of  the  present  Article  do  not  apply  if  the  vessel  is  en- 
countered at  sea  while  unaware  of  the  outbreak  of  hostilities  or  if  the 
master,  after  becoming  aware  of  the  outbreak  of  hostilities,  has  had  no 
opportunity  of  disembarking  the  passengers.  The  vessel  is  deemed  to 
be  aware  of  the  existence  of  a  state  of  war  if  she  left  an  enemy  port  sub- 
sequently to  the  outbreak  of  hostilities,  or  a  neutral  port  subsequently 
to  the  notification  of  the  outbreak  of  hostilities  to  the  Power  to  which 
such  port  belongs,  provided  that  such  notification  was  made  in  suflficient 
time. 

Article  46 

"A  neutral  vessel  will  be  condemned  and,  in  a  general  way,  receive  the 
same  treatment  as  would  be  applicable  to  her  if  she  were  an  enemy  mer- 
chant vessel : 

"(1)  If  she  takes  a  direct  part  in  the  hostilities; 

"  (2)  If  she  is  under  the  orders  or  control  of  an  agent  placed  on  board 
by  the  enemy  Government; 

"(3)  If  she  is  in  the  exclusive  employment  of  the  enemy  Government; 

"(4)  If  she  is  exclusively  engaged  at  the  time  either  in  the  transport  of 
enemy  troops  or  in  the  transmission  of  intelligence  in  the  interest  of  the 
enemy. 

"In  the  cases  covered  by  the  present  Article,  goods  belonging  to  the 
owner  of  the  vessel  are  likewise  liable  to  condemnation. 

Article  47 

"Any  individual  embodied  in  the  armed  forces  of  the  enemy  who  is 
found  on  board  a  neutral  merchant  vessel  may  be  made  a  prisoner  of  war, 
even  though  there  be  no  ground  for  the  capture  of  the  vessel. 

Chapter  IV — Destruction  of  Netttral  Prizes 

Article  48 

"A  neutral  vessel  which  has  been  captured  may  not  be  destroyed  by 
the  captor;  she  must  be  taken  into  such  port  as  is  proper  for  the  deter- 
mination there  of  all  questions  concerning  the  validity  of  the  capture. 

Article  49 

"As  an  exception,  a  neutral  vessel  which  has  been  captured  by  a  bellig- 
erent war-ship  and  which  would  be  liable  to  condemnation  may  be  de- 
stroyed if  the  observance  of  Article  48  would  involve  danger  to  the  safety 
of  the  war-ship  or  to  the  success  of  the  operations  in  which  she  is  engaged 
at  the  time. 


APPENDIX  IV  545 


Article  50 

"Before  the  vessel  is  destroyed  all  persons  on  board  must  be  placed  in 
safety  and  all  the  ship's  papers  and  other  documents  which  the  parties 
interested  consider  relevant  for  the  purpose  of  deciding  on  the  validity 
of  the  capture  must  be  taken  on  board  the  war-ship. 

Article  51 
"A  captor  who  has  destroyed  a  neutral  vessel  must,  prior  to  any  de- 
cision respecting  the  validity  of  the  prize,  establish  that  he  only  acted  in 
the  face  of  an  exceptional  necessity  of  the  nature  contemplated  in  Article 
49.  If  he  fails  to  do  this,  he  must  compensate  the  parties  interested  and 
no  examination  shall  be  made  of  the  question  whether  the  capture  was 
valid  or  not. 

Article  52 

"If  the  capture  of  a  neutral  vessel  is  subsequently  held  to  be  invalid, 
though  the  act  of  destruction  has  been  held  to  have  been  justifiable,  the 
captor  must  pay  compensation  to  the  parties  interested  in  place  of  the 
restitution  to  which  they  would  have  been  entitled. 

Article  53 

"If  neutral  goods  not  liable  to  condemnation  have  been  destroyed  with 
the  vessel,  the  owner  of  such  goods  is  entitled  to  compensation. 

Article  54 

"The  captor  has  the  right  to  demand  the  handing  over,  or  to  proceed 
himself  to  the  destruction  of,  any  goods  liable  to  condemnation  found  on 
board  a  vessel  not  herself  liable  to  condemnation,  provided  that  the  cir- 
cumstances are  such  as  would,  under  Article  49,  justify  the  destruction 
of  a  vessel  herself  liable  to  condemnation.  The  captor  must  enter  the 
goods  surrendered  or  destroyed  in  the  log-book  of  the  vessel  stopped  and 
must  obtain  duly  certified  copies  of  all  relevant  papers.  When  the  goods 
have  been  handed  over  or  destroyed  and  the  formalities  duly  carried  out, 
the  master  must  be  allowed  to  continue  his  voyage. 

"The  provisions  of  Articles  51  and  52  respecting  the  obligations  of  a 
captor  who  has  destroyed  a  neutral  vessel  are  applicable. 

Chapter  V — Transfer  to  a  Neutral  Flag 

Article  55 
"The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected  before  the 
outbreak  of  hostilities,  is  valid,  unless  it  is  proved  that  such  transfer  was 
made  in  order  to  evade  the  consequences  to  which  an  enemy  vessel,  as 
such,  is  exposed.  There  is,  however,  a  pr(>s\imj)tion,  if  the  bill  of  sale  is 
not  on  board  a  vessel  which  has  lost  her  belligerent  nationality  less  than 


546  APPENDIX  IV 

sixty  days  before  the  outbreak  of  hostilities,  that  the  transfer  is  void. 
This  presumption  may  be  rebutted. 

"Where  the  transfer  was  effected  more  than  thirty  days  before  the 
outbreak  of  hostihties,  there  is  an  absolute  presumption  that  it  is  valid 
if  it  is  unconditional,  complete,  and  in  conformity  with  the  laws  of  the 
countries  concerned,  and  if  its  effect  is  such  that  neither  the  control  of, 
nor  the  profits  arising  from  the  employment  of,  the  vessel  remain  in  the 
same  hands  as  before  the  transfer.  If,  however,  the  vessel  lost  her  bel- 
ligerent nationality  less  than  sixty  days  before  the  outbreak  of  hostilities 
and  if  the  bill  of  sale  is  not  on  board,  the  capture  of  the  vessel  gives  no 
right  to  damages. 

Article  56 

"The  transfer  of  an  enemy  vessel  to  a  neutral  flag  effected  after  the 
outbreak  of  hostilities  is  void  unless  it  is  proved  that  such  transfer  was 
not  made  in  order  to  evade  the  consequences  to  which  an  enemy  vessel, 
as  such,  is  exposed. 

"There,  however,  is  an  absolute  presumption  that  a  transfer  is  void: 

"(1)  If  the  transfer  has  been  made  during  a  voyage  or  in  a  blockaded 
port; 

"(2)  If  a  right  to  repurchase  or  recover  the  vessel  is  reserved  to  the 
vender; 

"(3)  If  the  requirements  of  the  municipal  law  governing  the  right  to 
fly  the  flag  under  which  the  vessel  is  sailing  have  not  been  fulfilled. 

Chapter  VI — Enemy  Character 

Article  57 

"Subject  to  the  provisions  respecting  transfer  to  another  flag,  the  neu- 
tral or  enemy  character  of  a  vessel  is  determined  by  the  flag  which  she  is 
entitled  to  fly. 

"The  case  where  a  neutral  vessel  is  engaged  in  a  trade  which  is  closed 
in  time  of  peace  remains  outside  the  scope  of,  and  is  in  no  wise  affected 
by,  this  rule. 

Article  58 

"The  neutral  or  enemy  character  of  goods  found  on  board  an  enemy 
vessel  is  determined  by  the  neutral  or  enemy  character  of  the  owner. 

Article  59 
"In  the  absence  of  proof  of  the  neutral  character  of  goods  found  on 
board  an  enemy  vessel,  they  are  presumed  to  be  enemy  goods. 

Article  60 
"Enemy  goods  on  board  an  enemy  vessel  retain  their  enemy  character 
until  they  reach  their  destination,  notwithstanding  any  transfer  effected 
after  the  outbreak  of  hostilities  while  the  goods  are  being  forwarded. 


APPENDIX  IV  547 

"If,  however,  prior  to  the  capture  a  former  neutral  owner  exercises, 
on  the  bankruptcy  of  an  existing  enemy  owner,  a  recognized  legal  right  to 
recover  the  goods,  they  regain  their  neutral  character. 

Chapter  VII — Convoy 

Article  61 

"Neutral  vessels  under  national  convoy  are  exempt  from  search.  The 
commander  of  a  convoy  gives,  in  writing,  at  the  request  of  the  commander 
of  a  belligerent  war-ship,  all  information  as  to  the  character  of  the  vessels 
and  their  cargoes  which  could  be  obtained  by  search. 

Article  62. 

"If  the  commander  of  the  belligerent  war-ship  has  reason  to  suspect 
that  the  confidence  of  the  commander  of  the  convoy  has  been  abused,  he 
communicates  his  suspicions  to  him.  In  such  a  case  it  is  for  the  com- 
mander of  the  convoy  alone  to  investigate  the  matter.  He  must  record 
the  result  of  such  investigation  in  a  report,  of  which  a  copy  is  handed  to 
the  officer  of  the  war-ship.  If,  in  the  opinion  of  the  commander  of  the 
convoy,  the  facts  shown  in  the  report  justify  the  capture  of  one  or  more 
vessels,  the  protection  of  the  convoy  must  be  withdrawn  from  such  vessels. 

Chapter  VIII — Resistance  to  Search 

Article  63 

"Forcible  resistance  to  the  legitimate  exercise  of  the  right  of  stoppage, 
search,  and  capture,  involves  in  all  cases  the  condemnation  of  the  vessel. 
The  cargo  is  liable  to  the  same  treatment  as  the  cargo  of  an  enemy  vessel. 
Goods  belonging  to  the  master  or  owner  of  the  vessel  are  treated  as  enemy 
goods. 

Chapter  IX — Compensation 

Article  64 

"If  the  capture  of  a  vessel  or  of  goods  is  not  upheld  by  the  prize-court, 
or  if  the  prize  is  released  without  any  judgment  being  given,  the  parties 
interested  have  the  right  to  compensation,  unless  there  were  good  reasons 
for  capturing  the  vessel  or  goods. 

Final  Provisions 

Article  65 

"The  provisions  of  the  present  Declaration  must  be  treated  as  a  whole 
and  cannot  be  separated. 


548  APPENDIX  IV 

Article  66 

"The  Signatory  Powers  undertake  to  insure  the  mutual  observance  of 
the  rules  contained  in  the  present  Declaration  in  any  war  in  which  all  the 
belligerents  are  parties  thereto.  They  will  therefore  issue  the  necessary 
instructions  to  their  authorities  and  to  their  armed  forces  and  will  take 
such  measures  as  may  be  required  in  order  to  insure  that  it  will  be  applied 
by  their  courts  and,  more  particularly,  by  their  prize-courts. 

Article  67 

"  The  present  Declaration  shall  be  ratified  as  soon  as  possible. 

"  The  ratifications  shall  be  deposited  in  London. 

"  The  first  deposit  of  ratifications  shall  be  recorded  in  a  Protocol  signed 
by  the  Representatives  of  the  Powers  taking  part  therein  and  by  His 
Britannic  Majesty's  Principal  Secretary  of  State  for  Foreign  Aflfairs. 

"  The  subsequent  deposits  of  ratifications  shall  be  made  by  means  of  a 
written  notification  addressed  to  the  British  Government  and  accompanied 
by  the  instrument  of  ratification. 

"  A  duly  certified  copy  of  the  Protocol  relating  to  the  first  deposit  of  rati- 
fications and  of  the  notifications  mentioned  in  the  preceding  paragraph,  as 
well  as  of  the  instruments  of  ratification  which  accompany  them,  shall  be 
immediately  sent  by  the  British  Government,  through  the  diplomatic 
channel,  to  the  Signatory  Powers.  The  said  Government  shall,  in  the 
cases  contemplated  in  the  preceding  paragraph,  inform  them  at  the  same 
time  of  the  date  on  which  it  received  the  notification. 

Article  68 

"The  present  Declaration  shall  take  effect,  in  the  case  of  the  Powers 
which  were  parties  to  the  first  deposit  of  ratifications,  sixty  days  after 
the  date  of  the  Protocol  recording  such  deposit  and,  in  the  case  of  the 
Powers  which  shall  ratify  subsequently,  sixty  days  after  the  notification  of 
their  ratification  shall  have  been  received  by  the  British  Government. 

Article  69 

"  In  the  event  of  one  of  the  Signatory  Powers  wishing  to  denounce  the 
present  Declaration,  such  denunciation  can  only  be  made  to  take  effect 
at  the  end  of  a  period  of  twelve  years,  beginning  sixty  days  after  the  first 
deposit  of  ratifications,  and,  after  that  time,  at  the  end  of  successive 
periods  of  six  years,  of  which  the  first  will  begin  at  the  end  of  the  period 
of  twelve  years. 

"  Such  denunciation  must  be  notified  in  writing,  at  least  one  year  in  ad- 
vance, to  the  British  Government,  which  shall  inform  all  the  other  Powers. 

"It  will  only  operate  in  respect  of  the  denouncing  Power. 

Article  70 
"  The  Powers  represented  at  the  London  Naval  Conference  attach  par- 
ticular importance  to  the  general  recognition  of  the  rules  which  they  have 


APPENDIX  IV  549 

adopted  and  therefore  express  the  hope  that  the  Powers  which  were  not 
represented  there  will  accede  to  the  present  Declaration.  They  request 
the  British  Government  to  invite  them  to  do  so. 

"A  Power  which  desires  to  accede  shall  notify  its  intention  in  WTiting  to 
the  British  Government  and  transmit  simultaneously  the  act  of  accession, 
which  will  be  deposited  in  the  archives  of  the  said  Government. 

"  The  said  Government  shall  forthwith  transmit  to  all  the  other  Powers 
a  duly  certified  copy  of  the  notification,  together  with  the  act  of  accession, 
and  communicate  the  date  on  which  such  notification  was  received.  The 
accession  takes  effect  sixty  days  after  such  date. 

"  In  respect  of  all  matters  concerning  this  Declaration,  acceding  Powers 
shall  be  on  the  same  footing  as  the  Signatory  Powers. 

Article  71 

"The  present  Declaration,  which  bears  the  date  of  the  26th  February, 
1909,  may  be  signed  in  London  up  till  the  30th  June,  1909,  by  the  Pleni- 
potentiaries of  the  Powers  represented  at  the  Naval  Conference. 

"  In  faith  whereof  the  Plenipotentiaries  have  signed  the  present  Declara- 
tion and  have  thereto  affixed  their  seals. 

"  Done  at  London,  the  twenty-sixth  day  of  February,  one  thousand  nine 
hundred  and  nine,  in  a  single  original,  which  shall  remain  deposited  in 
the  archives  of  the  British  Government  and  of  which  duly  certified  copies 
shall  be  sent  through  the  diplomatic  channel  to  the  Powers  represented 
at  the  Naval  Conference." 

(Here  follow  the  signatures.) 

List  of  signatures  appended  to  the  Declaration  of  February  26,  1909,  up  to 

March  20,  1909 1 

For  Germany: 

Kriege, 
For  the  United  States  of  America: 

C. H.  Stockton. 

George  Grafton  Wilson. 
For  Austria-Hungary: 

C.  DUMBA, 

For  France: 

L.  Renault. 

For  Great  Britain: 
Desart. 

For  the  Netherlands: 
J.  A.  Roell. 
/  L.  H.  Ruyssenaers. 

'  Notification  subsequently  given  of  the  signatures  of  the  declaration: 
Spain,  Italy,  RuBBia,  Japan. 


550  APPENDIX  IV 


No.  18 

General  Report  Presented  to  the  Naval  Conference  on  Behalp 
OF  Its  Draughting  Committee^ 

[Translation]^ 

"On  the  27th  February,  1908,  the  British  Government  addressed  a  cir- 
cular to  various  powers  inviting  them  to  meet  at  a  conference  with  the 
object  of  reaching  an  agreement  as  to  the  definition  of  the  generally  recog- 
nized principles  of  international  law  in  the  sense  of  article  7,  paragraph  2, 
of  the  convention  signed  at  The  Hague  on  the  18th  October,  1907,  for  the 
establishment  of  an  international  prize-court.  This  agreement  appeared 
necessary  to  the  British  Government  on  account  of^certain  divergences  of 
view  which  had  become  apparent  at  the  second  peace  conference  in  con- 
nection with  the  settlement  of  various  important  questions  of  international 
maritime  law  in  time  of  war.  The  existence  of  these  divergent  views 
might,  it  seemed,  render  difficult  the  acceptance  of  the  international  prize- 
court,  as  the  power  of  this  court  would  be  the  more  extended  in  propor- 
tion as  the  rules  to  be  applied  by  it  were  more  uncertain. 

"  The  British  Government  suggested  that  the  following  questions  might 
form  the  programme  of  the  proposed  conference  and  invited  the  powers  to 
express  their  views  regarding  them  in  preparatory  memoranda: 

'"(a)  Contraband,  including  the  circumstances  under  which  particular 
articles  can  be  considered  as  contraband;  the  penalties  for  their  carriage; 
the  immunity  of  a  ship  from  search  when  under  convoy;  and  the  rules 
with  regard  to  compensation  where  vessels  have  been  seized  but  have  been 
found,  in  fact,  only  to  be  carrying  innocent  cargo. 

'"(b)  Blockade,  including  the  questions  as  to  the  locality  where  seizure 
can  be  effected  and  the  notice  that  is  necessary  before  a  ship  can  be  seized. 

"'(c)  The  doctrine  of  continuous  voyage  in  respect  both  of  contraband 
and  of  blockade. 

'"{d)  The  legality  of  the  destruction  of  neutral  vessels  prior  to  their 
condemnation  by  a  prize-court. 

'"{e)  The  rules  as  to  neutral  ships  or  persons  rendering  "unneutral 
service"  ("assistance  hostile"). 

" '  (/)  The  legality  of  the  conversion  of  a  merchant  vessel  into  a  war-ship 
on  the  high  seas. 

"'(g)  The  rules  as  to  the  transfer  of  merchant  vessels  from  a  belligerent 
to  a  neutral  flag  during  or  in  contemplation  of  hostilities. 

'  ThiB  committee  consists  of  Messrs.  Kriege  (Germany),  Wilson  (United 
States  of  America),  Dumba  (Austria-Hungary),  Estrada  (Spain),  Renault 
(France),  Reporter,  Hurst  (Great  Britain),  Ricci-Busatti  (Italy),  Saka- 
moto (Japan),  Ruyssenaers  (Netherlands),  Baron  Taube  (Russia). 

*  For  the  original  French  text  of  the  report,  see  Parliamentary  jPaper 
"MisceUaneous  No.  5  (1909),"  p.  344. 


APPENDIX  IV  551 

_^  *'"(A)  The  question  whether  the  nationahty  or  the  domicile  of  the  owner 
should  be  adopted  as  the  dominant  factor  in  deciding  whether  property  is 
enemy  property.' 

"The  invitations  were  accepted,  and  the  conference  met  on  the  4th 
December  last.  The  British  Government  had  been  so  good  as  to  assist 
its  deliberations  by  presenting  a  collection  of  papers  which  quickly  became 
known  among  us  by  the  name  of  the  Red  Book,  and  which,  after  a  short 
introduction,  contains  a  'statement  of  the  views  expressed  by  the  powers 
in  their  memoranda  and  observations  intended  to  serve  as  a  basis  for  the 
deliberations  of  the  conference.'  These  are  the  'bases  of  discussion'  which 
served  as  a  starting-point  for  the  examination  of  the  chief  questions  of  ex- 
isting international  maritime  law.  The  conference  could  not  but  express 
its  gratitude  for  this  valuable  preparatory  work,  which  was  of  great  assis- 
tance to  it.  It  made  it  possible  to  observe,  in  the  first  place,  that  the  di- 
vergences in  the  practices  and  doctrines  of  the  different  countries  were 
perhaps  less  wide  than  was  generally  believed,  that  the  essential  ideas 
were  often  the  sam.e  in  all  countries,  and  that  the  methods  of  application 
alone  varied  with  traditions  or  prejudices,  with  permanent  or  accidental 
interests.  It  was  therefore  possible  to  extract  a  common  element  which  it 
could  be  agreed  to  recommend  for  uniform  application.  This  is  the  end 
to  which  the  efforts  of  the  different  delegations  tended,  and  they  vied  with 
one  another  in  their  zeal  in  the  search  for  the  grounds  of  a  common  under- 
standing. Their  efforts  were  strenuous,  as  is  shown  by  the  prolonged  dis- 
cussions of  the  conference,  the  grand  committee,  and  the  examining  com- 
mittees and  by  the  numerous  proposals  which  were  presented.  Sailors, 
diplomatists,  and  jurists  cordially  co-operated  in  a  work  the  description 
of  which,  rather  than  a  final  estimate  of  its  essential  value,  is  the  object 
of  this  report,  as  our  impartiality  might  naturally  be  suspected. 

"The  body  of  rules  contained  in  the  declaration,  which  is  the  result  of 
the  deliberations  of  the  naval  conference  and  which  is  to  be  entitled 
'Declaration  Concerning  the  Laws  of  Naval  War,'  answers  well  to  the 
desire  expressed  by  the  British  Government  in  its  invitation  of  February, 
1908.  The  questions  in  the  programme  are  all  settled  except  two,  with  re- 
gard to  which  explanations  will  be  given  later.  The  solutions  have  been 
extracted  from  the  various  views  or  practices  which  prevail  and  represent 
what  may  be  called  the  media  sententia.  They  are  not  always  in  absolute 
agreement  with  the  views  peculiar  to  each  country,  but  they  shock  the 
essential  ideas  of  none.  They  must  not  be  examined  separately  but  as 
a  whole;  otherwise  there  is  a  risk  of  the  most  serious  misunderstandings. 
In  fact,  if  one  or  more  isolated  rules  are  examined  either  from  the  bellig- 
erent or  the  neutral  point  of  view,  the  reader  may  find  that  the  interests 
with  which  he  is  especially  concerned  are  jeopardized  by  the  adoj)tion  of 
these  rules.  But  they  have  another  side.  The  work  is  one  of  compromise 
and  mutual  concessions.     Is  it,  as  a  whole,  a  good  one? 

"We  confidently  hope  that  those  who  study  it  seriously  will  answer 
that  it  is.     The  declaration  puts  uniformity  and  certainty  in  the  place  of 


552  APPENDIX  IV 

the  diversity  and  obscurity  from  which  international  relations  have  too 
long  suffered.  The  conference  has  tried  to  reconcile  in  an  equitable  and 
practical  way  the  rights  of  belligerents  with  those  of  neutral  commerce; 
it  consists  of  powers  whose  conditions,  from  the  political,  economic,  and 
geographical  points  of  view,  vary  considerably.  There  is,  therefore,  reason 
to  suppose  that  the  rules  on  which  these  powers  have  agreed  to  take  suf- 
ficient account  of  the  different  interests  involved,  and  hence  may  be  ac- 
cepted without  objection  by  all  the  others. 

"  The  preamble  of  the  declaration  summarizes  the  general  ideas  just  set 
forth. 

"'Having  regard  to  the  terms  in  which  the  British  Government  invited 
various  powers  to  meet  in  conference  in  order  to  arrive  at  an  agreement 
as  to  what  are  the  generally  recognized  rules  of  international  law  within 
the  meaning  of  article  7  of  the  convention  of  the  18th  October,  1907, 
relative  to  the  establishment  of  an  international  prize-court. 

'"Recognizing  all  the  advantages  which  an  agreement  as  to  the  said 
rules  would  present  in  the  unfortunate  event  of  a  naval  war,  both  as  re- 
gards peaceful  commerce  and  as  regards  the  belligerents  and  their  diplo- 
matic relations  with  neutral  governments. 

" '  Having  regard  to  the  divergence  often  found  in  the  methods  by  which 
it  is  sought  to  apply  in  practice  the  general  principles  of  international  law. 

'"Animated  by  the  desire  to  insure  henceforward  a  greater  measure  of 
uniformity  in  this  respect. 

"'Hoping  that  a  work  so  important  to  the  common  welfare  will  meet 
with  general  approval.' 

"What  is  the  scope  of  application  of  the  rules  thus  laid  down?  They 
must  be  observed  in  the  relations  between  the  signatory  parties,  since 
those  parties  acknowledge  them  as  principles  of  recognized  international 
law  and,  besides,  expressly  bind  themselves  to  secure  the  benefit  of  them 
for  one  another.  The  signatory  powers  who  are  or  will  be  parties  to  the 
convention  establishing  the  international  prize-court  will  have,  besides, 
an  opportunity  of  having  these  rules  applied  to  disputes  in  which  they 
are  concerned,  whether  the  court  regards  them  as  generally  recognized 
rules,  or  takes  account  of  the  pledge  given  to  observe  them.  It  is  more- 
over to  be  hoped  that  these  rules  will  before  long  be  accepted  by  the 
majority  of  States,  who  will  recognize  the  advantage  of  substituting  exact 
provisions  for  more  or  less  indefinite  usages  which  tend  to  give  rise  to 
controversy. 

"It  has  been  said  above  that  two  points  in  the  programme  of  the  confer- 
ence were  not  decided. 

"(1)  The  programme  mentions  under  head  (/):  The  legality  of  the  con- 
version of  a  merchant  vessel  into  a  war-ship  on  the  high  seas.  The  con- 
flicting views  on  this  subject  which  became  apparent  at  the  conference  of 
The  Hague  in  1907  have  recurred  at  the  present  conference.  It  may  be 
concluded,  both  from  the  statements  in  the  memoranda  and  from  the 
discussion,  that  there  is  no  generally  accepted  rule  on  this  point,  nor  dp 


APPENDIX  IV  553 

there  appear  to  be  any  precedents  which  can  be  adduced.  Though  the 
two  opposite  opinions  were  defended  with  great  warmth,  a  hvely  desire 
for  an  understanding  was  expressed  on  all  sides;  everybody  was  at  least 
agreed  that  it  would  be  a  great  advantage  to  put  an  end  to  uncertainty. 
Serious  efforts  were  made  to  do  justice  to  the  interests  espoused  by  both 
sides,  but  these  unfortunately  failed.  A  subsidiary  question  dependent 
on  the  previous  one,  on  which,  at  one  moment,  it  appeared  possible  to  come 
to  an  agreement,  is  that  of  reconversion.  According  to  one  proposal  it 
was  to  be  laid  down  that  'merchant  vessels  converted  into  war-ships  can- 
not be  reconverted  into  merchant  vessels  during  the  whole  course  of  the 
war.'  The  rule  was  absolute  and  made  no  distinction  as  regards  the 
place  where  reconversion  could  be  effected;  it  was  dictated  by  the  idea 
that  such  conversion  would  always  have  disadvantages,  would  be  produc- 
tive of  surprises,  and  lead  to  actual  frauds.  As  unanimity  in  favor  of  this 
proposal  was  not  forthcoming,  a  subsidiary  one  was  brought  forward, 
viz,  'The  conversion  of  a  war-ship  into  a  merchant  vessel  on  the  high  seas 
is  forbidden  diuring  the  war.'  The  case  had  in  view  was  that  a  war-ship 
(generally  a  recently  converted  merchant  vessel)  doffing  its  character  so 
as  to  be  able  freely  to  revictual  or  refit  in  a  neutral  port  without  being 
bound  by  the  restrictions  imposed  on  war-ships.  Will  not  the  position  of 
the  neutral  State  between  two  belligerents  be  delicate,  and  will  not  such 
State  expose  itself  to  reproach  whether  it  treats  the  newly  converted  ship 
as  a  merchant  vessel  or  as  a  war-ship  ?  Agreement  might  perhaps  have 
been  reached  on  this  proposal,  but  it  seemed  very  difficult  to  deal  with 
this  secondary  aspect  of  a  question  which  there  was  no  hope  of  settling 
as  a  whole.     This  was  the  decisive  reason  for  the  rejection  of  all  proposals. 

"The  question  of  conversion  on  the  high  seas  and  that  of  reconversion 
therefore  remain  open. 

"2.  Under  head  (h)  the  British  programme  mentions  the  question 
whether  the  nationality  or  the  domicile  of  the  owner  should  be  adopted  as 
the  dominant  factor  in  deciding  whether  property  is  enemy  property.  This 
question  was  subjected  to  a  searching  examination  by  a  special  committee, 
which  had  to  acknowledge  the  uncertainty  of  actual  practice;  it  was  pro- 
posed to  put  an  end  to  this  by  the  following  provisions: 

"'The  neutral  or  enemy  character  of  goods  found  on  board  an  enemy 
vessel  is  determined  by  the  neutral  or  enemy  nationality  of  their  owner, 
or,  if  he  is  of  no  nationality  or  of  double  nationality  (i.  e.,  both  neutral 
and  enemy),  by  his  domicile  in  a  neutral  or  enemy  country;  provided 
that  goods  belonging  to  a  limited  liability  or  joint  stock  company  are  con- 
sidered as  neutral  or  enemy  according  as  the  company  has  its  headquarters 
in  a  neutral  country.' 

"Unanimity  not  being  forthcoming,  these  provisions  remained  with- 
out effect. 

"We  now  reach  the  explanation  of  the  declaration  itself,  on  which  we 
shall  try,  by  summarizing  the  reports  already  approved  by  the  conference, 
to  give  an  exact  and  uucontroversial  commentary;   this,  when  it  has  be- 


554  APPENDIX  IV 

come  an  official  commentary  by  receiving  the  approval  of  the  conference, 
may  serve  as  a  guide  to  the  different  authorities — administrative,  military, 
and  judicial — who  may  be  called  on  to  apply  it. 

Preliminary  Provision 

"The  signatory  powers  are  agreed  that  the  rules  contained  in  the  fol- 
lowing chapters  correspond  in  substance  with  the  generally  recognized 
principles  of  international  law. 

"This  provision  dominates  all  the  rules  which  follow.  Its  spirit  has 
been  indicated  in  the  general  remarks  to  be  found  at  the  beginning  of  this 
report.  The  purpose  of  the  conference  has,  above  all,  been  to  note,  to 
define,  and,  where  needful,  to  complete  what  might  be  considered  as 
customary  law. 

Chapter  I — Blockade  in  Time  of  War 

"Blockade  is  here  regarded  solely  as  an  operation  of  war,  and  there  is 
no  intention  of  touching  in  any  way  on  what  is  called  'pacific'  blockade. 

"'Article  1.  A  blockade  must  not  extend  beyond  the  ports  and  coasts 
belonging  to  or  occupied  by  the  enemy.' 

"Blockade,  as  an  operation  of  war,  can  be  directed  by  a  belligerent  only 
against  his  adversary.  This  very  simple  rule  is  laid  down  at  the  start, 
but  its  full  scope  is  apparent  only  when  it  is  read  in  connection  with 
article  18. 

"  'Art.  2.  In  accordance  with  the  declaration  of  Paris  of  1856,  a 
blockade,  in  order  to  be  binding,  must  be  effective — that  is  to  say,  it  must 
be  maintained  by  a  force  sufficient  really  to  prevent  access  to  the  enemy 
coast-line.' 

"The  first  condition  necessary  to  render  a  blockade  binding  is  that  it 
should  be  effective.  There  has  been  universal  agreement  on  this  subject 
for  a  long  time.  As  for  the  definition  of  an  effective  blockade,  we  thought 
that  we  had  only  to  adopt  the  one  to  be  found  in  the  declaration  of  Paris 
of  the  16th  April,  1856,  which,  conventionally,  binds  a  great  number  of 
States  and  is  in  fact  accepted  by  the  rest. 

"'Art.  3.  The  question  whether  a  blockade  is  effective  is  a  question 
of  fact.' 

"It  is  easily  to  be  understood  that  difficulties  often  arise  on  the  ques- 
tion whether  a  blockade  is  effective  or  not;  opposing  interests  are  at  stake. 
The  blockading  belligerent  wishes  to  economize  his  efforts,  and  neutrals 
desire  their  trade  to  be  as  little  hampered  as  possible.  Diplomatic  pro- 
tests have  sometimes  been  made  on  this  subject.  The  point  may  be  a 
delicate  one,  because  no  absolute  rule  can  be  laid  down  as  to  the  number 
and  position  of  the  blockading  ships.  All  depends  on  matters  of  fact 
and  geographical  conditions.  In  one  case  a  single  ship  will  suffice  to 
blockade  a  port  as  effectively  as  possible,  whereas  in  another  a  whole  fleet 
may  not  be  enough  really  to  prevent  access  to  one  or  more  ports  declared 
to  be  blockaded.     It  is  therefore  essentially  a  question  of  fact,  to  be  de- 


APPENDIX  IV  555 

cided  on  the  merits  of  each  case  and  not  according  to  a  formula  drawn 
up  beforehand.  Who  shall  decide  it?  The  judicial  authority.  This 
will  be,  in  the  first  place,  the  national  tribunal  which  is  called  on  to  pro- 
nounce as  to  the  validity  of  the  prize  and  which  the  vessel  captured  for 
breach  of  blockade  can  ask  to  declare  the  capture  void,  because  the  block- 
ade, not  being  effective,  was  not  binding.  This  resort  has  always  existed; 
it  may  not  always  have  given  satisfaction  to  the  powers  concerned,  because 
they  may  have  thought  that  the  national  tribunal  was  rather  naturally 
led  to  consider  effective  the  blockade  declared  to  be  so  by  its  govern- 
ment. But  when  the  international  prize-court  convention  comes  into 
force  there  will  be  an  absolutely  impartial  tribunal,  to  which  neutrals 
may  apply,  and  which  will  decide  whether,  in  a  given  case,  the  blockade 
was  effective  or  not.  The  possibility  of  this  resort,  besides  allowing 
certain  injustices  to  be  redressed,  will  most  likely  have  a  preventive  effect, 
in  that  a  government  will  take  care  to  establish  its  blockades  in  such  a 
way  that  their  effect  cannot  be  annulled  by  decisions  which  would  inflict 
on  it  a  heavy  loss.  The  full  scope  of  article  3  is  thus  seen  when  it  is  under- 
stood that  the  question  with  which  it  deals  must  be  settled  by  a  court. 
The  foregoing  explanation  is  inserted  in  the  report  at  the  request  of  the 
committee,  in  order  to  remove  all  possibility  of  misunderstanding. 

"'Art.  4.  A  blockade  is  not  regarded  as  raised  if  the  blockading  force 
is  temporarily  withdrawn  on  account  of  stress  of  weather.' 

"It  is  not  enough  for  a  blockade  to  be  established;  it  must  be  main- 
tained. If  it  is  raised  it  may  be  re-established,  but  this  requires  the  ob- 
servance of  the  same  formalities  as  though  it  were  established  for  the  first 
time.  By  tradition,  a  blockade  is  not  regarded  as  raised  when  it  is  in 
consequence  of  stress  of  weather  that  the  blockading  forces  are  temporarily 
withdrawn.  This  is  laid  down  in  article  4.  It  must  be  considered  limi- 
tative in  the  sense  that  stress  of  weather  is  the  only  form  of  compulsion 
which  can  be  alleged.  If  the  blockading  forces  were  withdrawn  for  any 
other  reason,  the  blockade  would  be  regarded  as  raised,  and,  if  it  were 
resumed,  articles  12  (last  rule)  and  13  would  apply. 

"'Art.  5.  A  blockade  must  be  applied  impartially  to  the  ships  of  all 
nations.' 

"Blockade,  as  an  operation  of  lawful  warfare,  must  be  respected  by 
neutrals  in  so  far  as  it  really  remains  an  operation  of  war  which  has  the 
object  of  interrupting  all  commercial  relations  with  the  blockaded  port. 
IX  may  not  be  made  the  means  of  allowing  a  belligerent  to  favor  the  vessels 
of  certain  nations  by  letting  them  pass.     This  is  the  point  of  article  5. 

"'Art.  6.  The  commander  of  a  blockading  force  may  give  permission 
to  a  war-ship  to  enter,  and  subsequently  to  leave,  a  blockaded  port.' 

"Does  the  prohibition  which  applies  to  all  merchant  vessels  apply  also 
to  war-ships?  No  definite  reply  can  be  given.  The  commander  of  the 
blockading  forces  may  think  it  useful  to  cut  off  all  communication  with 
the  blockaded  place  and  refuse  access  to  neutral  war-ships;  no  rule  is  im- 
posed on  him.     If  he  lets  them  in,  it  is  as  a  matter  of  courtesy.     If  a 


556  APPENDIX  IV 

rule  has  been  drawn  up  merely  to  lay  down  this,  it  is  in  order  that  it  may 
not  be  claimed  that  a  blockade  has  ceased  to  be  effective  on  account  of 
leave  granted  to  such  and  such  neutral  war-ships. 

"The  blockading  commander  must  act  impartially,  as  stated  in  article 
5.  Nevertheless,  the  mere  fact  that  he  has  let  a  war-ship  pass  does  not 
oblige  him  to  let  pass  all  neutral  war-ships  which  may  come.  It  is  ques- 
tion of  judgment.  The  presence  of  a  neutral  war-ship  in  a  blockaded  port 
may  not  have  the  same  consequences  at  all  stages  of  the  blockade,  and  the 
commander  must  be  left  free  to  judge  whether  he  can  be  courteous  with- 
out making  any  sacrifice  of  his  military  interests. 

'"Art.  7.  In  circumstances  of  distress,  acknowledged  by  an  oflacer 
of  the  blockading  force,  a  neutral  vessel  may  enter  a  place  under  blockade, 
and  subsequently  leave  it,  provided  that  she  has  neither  discharged  nor 
shipped  any  cargo  there.' 

"Distress  can  explain  the  entrance  of  a  neutral  vessel  into  a  blockaded 
place,  for  instance,  if  she  is  in  want  of  food  or  water  or  needs  immediate 
repairs.  As  soon  as  her  distress  is  acknowledged  by  an  authority  of  the 
blockading  force,  she  may  cross  the  line  of  blockade;  it  is  not  a  favor 
which  she  has  to  ask  of  the  humanity  or  courtesy  of  the  blockading  au- 
thority. The  latter  may  deny  the  state  of  distress,  but  when  once  it  is 
proved  to  exist  the  consequence  follows  of  itself.  The  vessel  which  has 
thus  entered  the  blockaded  port  will  not  be  obliged  to  remain  there  for 
the  whole  duration  of  the  blockade;  she  may  leave  as  soon  as  she  is  fit  to 
do  so,  when  she  has  obtained  the  food  or  water  which  she  needs,  or  when 
she  has  been  repahed.  But  the  leave  granted  to  her  must  not  be  made 
an  excuse  for  commercial  transactions;  therefore  she  is  forbidden  to  dis- 
charge or  ship  any  cargo. 

"It  is  needless  to  say  that  a  blockading  squadron  which  insisted  on 
preventing  a  vessel  in  distress  from  passing  might  do  so  if  she  afforded  her 
the  help  which  she  needed. 

"'Art.  8.  A  blockade,  in  order  to  be  binding,  must  be  declared  in 
accordance  with  article  9  and  notified  in  accordance  with  articles  11  and 
16.' 

"Independently  of  the  condition  prescribed  by  the  declaration  of 
Paris  that  it  must  be  effective,  a  blockade,  to  be  binding,  must  be  declared 
and  notified.  Article  8  confines  itself  to  laying  down  the  principle  which  is 
applied  by  the  following  articles. 

"To  remove  all  possibility  of  misunderstanding  it  is  enough  to  define 
clearly  the  meaning  of  these  two  expressions,  which  •will  frequently  be 
used.  The  declaration  of  blockade  is  the  act  of  the  competent  authority 
(a  government  or  commander  of  a  squadron)  stating  that  a  blockade  is, 
or  is  about  to  be,  established  under  conditions  to  be  specified.  (Art.  9.) 
The  notification  is  the  fact  of  bringing  the  declaration  of  blockade  to  the 
knowledge  of  the  neutral  powers  or  of  certain  authorities  (art.  11). 

"These  two  things — declaration  and  notification — will  in  most  cases 
be  done  previously  to  the  enforcement  of  the  rules  ©f  blockade,  that  is 


APPENDIX  IV  557 

to  say,  to  the  real  prohibition  of  passage.  Nevertheless,  as  we  shall  see 
later,  it  is  sometimes  possible  for  passage  to  be  forbidden  by  the  very 
fact  of  the  blockade  which  is  brought  to  the  knowledge  of  a  vessel  ap- 
proaching a  blockaded  port  by  means  of  a  notification  which  is  special, 
whereas  the  notification  which  has  just  been  defined,  and  which  is  spoken 
of  in  article  11,  is  of  a  general  character. 

"  '  Akt.  9.  A  declaration  of  blockade  is  made  either  by  the  blockading 
power  or  by  the  naval  authorities  acting  in  its  name. 

'"It  specifies — 

"'(1)  The  date  when  the  blockade  begins. 

" '  (2)  The  geographical  limits  of  the  coast-line  under  blockade. 

*"(3)  The  period  within  which  neutral  vessels  may  come  out.' 

"The  declaration  of  blockade  in  most  cases  emanates  from  the  beBig- 
erent  government  itself.  That  government  may  have  left  the  commander 
of  its  naval  forces  free  himself  to  declare  a  blockade  according  to  the  cir- 
cumstances. There  will  not,  perhaps,  be  as  much  reason  as  formerly 
to  give  this  discretion,  because  of  the  ease  and  rapidity  of  communication. 
This,  being  merely  an  internal  question,  matters  little. 

"The  declaration  of  blockade  must  specify  certain  points  which  it  is 
in  the  interest  of  neutrals  to  know,  in  order  to  be  aware  of  the  extent  of 
their  obligations.  The  moment  from  which  it  is  forbidden  to  communi- 
cate with  the  blockaded  place  must  be  exactly  known.  It  is  important, 
as  affecting  the  obligations  both  of  the  blockading  power  and  of  neutrals, 
that  there  should  be  no  uncertainty  as  to  the  places  really  blockaded. 
Finally,  the  custom  has  long  been  established  of  allowing  neutral  vessels 
which  are  in  the  blockaded  port  to  leave  it.  This  custom  is  here  confirmed, 
in  the  sense  that  the  blockading  power  must  allow  a  period  within  which 
vessels  may  leave;  the  length  of  this  period  is  not  fixed,  because  it  clearly 
depends  on  very  varying  circumstances,  but  it  is  understood  that  the 
period  should  be  reasonable. 

'"Art.  10.  If  the  operations  of  the  blockading  power,  or  of  the  naval 
authorities  acting  in  its  name,  do  not  tally  with  the  particulars,  which, 
in  accordance  with  article  9  (1)  and  (2),  must  be  inserted  in  the  declaration 
of  blockade,  the  declaration  is  void,  and  a  new  declaration  is  necessary 
in  order  to  make  the  blockade  operative.' 

"The  object  of  this  article  is  to  insure  the  observance  of  article  9. 
Supposing  the  declaration  of  blockade  contains  statements  which  do  not 
tally  with  the  actual  facts;  it  states  that  the  blockade  began,  or  will 
begin,  on  such  a  day,  whereas,  in  fact,  it  only  began  several  days  later. 
Its  geographical  limits  are  inaccurately  given;  they  are  wider  than  those 
within  which  the  blockading  forces  are  operating.  What  shall  be  the 
sanction?  The  nullity  of  the  declaration  of  blockade,  which  prevents 
it  from  being  operative.  If,  then,  in  such  a  case,  a  neutral  vessel  is  cap- 
tured for  breach  of  blockade,  she  can  refer  to  the  nullity  of  the  declaration 
of  blockade  as  a  plea  for  the  nullity  of  the  capture;  if  her  plea  is  rejected 
by  the  national  tribunal,  she  can  appeal  to  the  international  court. 


558  APPENDIX  IV 

"To  avoid  misunderstandings,  the  significance  of  this  provision  must 
be  noticed.  The  declaration  states  that  the  blockade  begins  on  the  1st 
of  February;  it  really  only  begins  on  the  8th.  It  is  needless  to  say  that 
the  declaration  had  no  effect  from  the  1st  to  the  8th,  because  at  that  time 
there  was  no  blockade  at  all;  the  declaration  states  a  fact  but  does  not 
take  the  place  of  one.  The  rule  goes  further:  The  declaration  shall  not 
even  be  operative  from  the  8th  onward;  it  is  definitely  void,  and  another 
must  be  made. 

"There  is  no  question  here  of  cases  where  article  9  is  disregarded  by 
neglect  to  allow  neutral  vessels  in  the  blockaded  port  time  to  leave  it. 
The  sanction  could  not  be  the  same.  There  is  no  reason  to  annul  the  dec- 
laration as  regards  neutral  vessels  wishing  to  enter  the  blockaded  port. 
A  special  sanction  is  needed  in  that  case,  and  it  is  provided  by  article  16, 
paragraph  2. 

"'Art.  11.     A  declaration  of  blockade  is  notified — 

"'(1)  To  neutral  powers,  by  the  blockading  power  by  means  of  a  com- 
munication addressed  to  the  governments  direct  or  to  their  representa- 
tives accredited  to  it. 

"'  (2)  To  the  local  authorities  by  the  oflScer  commanding  the  blockading 
force.  The  local  authorities  will,  in  turn,  inform  the  foreign  consular 
officers  at  the  port  or  on  the  coast-hne  under  blockade  as  soon  as  possible.' 

"A  declaration  of  blockade  is  not  valid  unless  notified.  The  observance 
of  a  rule  can  only  be  required  by  those  who  have  the  opportunity  of  know- 
ing it. 

"Two  notifications  must  be  made: 

"1.  The  first  is  addressed  to  neutral  powers  by  the  belligerent  power, 
which  communicates  it  to  the  governments  themselves  or  to  their  represen- 
tatives accredited  to  it.  The  communication  to  the  governments  will  in 
most  cases  be  made  through  the  diplomatic  agents;  it  might  happen  that 
a  belligerent  had  no  diplomatic  relations  with  a  neutral  country;  it  will 
then  address  itself,  ordinarily  by  telegraph,  directly  to  the  government 
of  that  country.  It  is  the  duty  of  the  neutral  governments  advised  of  the 
declaration  of  blockade  to  take  the  necessary  measures  to  despatch  the 
news  to  the  different  parts  of  their  territory,  especially  their  ports. 

"2.  The  second  notification  is  made  by  the  commander  of  the  block- 
ading force  to  the  local  authorities.  These  must  inform,  as  soon  as  pos- 
sible, the  foreign  consuls  residing  at  the  blockaded  place  or  on  the  block- 
aded coast-line.  These  authorities  would  be  responsible  for  the  neglect 
of  this  obligation.  Neutrals  might  suffer  loss  from  the  fact  of  not  having 
been  informed  of  the  blockade  in  sufficient  time. 

"'Art.  12.  The  rules  as  to  declaration  and  notification  of  blockade 
apply  to  cases  where  the  limits  of  a  blockade  are  extended,  or  where  a 
blockade  is  re-established  after  having  been  raised.' 

"Supposing  a  blockade  is  extended  beyond  its  original  limits,  as  re- 
gards the  new  part,  it  is  a  new  blockade  and,  in  consequence,  the  rules  as 
to  declaration  and  notification  must  be  applied  to  it.     The  same  is  true 


APPENDIX  IV  559 

in  cases  where  a  blockade  is  re-established  after  having  been  raised;  the 
fact  that  a  blockade  has  already  existed  in  the  same  locality  must  not  be 
taken  into  account. 

'"Aht.  13.  The  voluntary  raising  of  a  blockade,  as  also  any  restric- 
tion in  the  limits  of  a  blockade,  must  be  notified  in  the  manner  prescribed 
by  article  11.' 

"It  is  indispensable  to  know  of  the  establishment  of  a  blockade;  it 
would  at  least  be  useful  for  the  public  to  be  told  of  its  raising,  since  it  puts 
an  end  to  the  restrictions  imposed  on  the  relations  of  neutrals  with  the 
blockaded  port.  It  has  therefore  been  thought  fit  to  ask  the  power  which 
raises  a  blockade  to  make  known  the  fact  in  the  form  in  which  it  has  noti- 
fied the  estabhshment  of  the  blockade.  (Art.  11.)  Only  it  must  be  ob- 
served that  the  sanction  could  not  be  the  same  in  the  two  cases.  To  in- 
sure the  notification  of  the  declaration  of  blockade  there  is  a  direct  and 
adequate  sanction;  an  unnotified  blockade  is  not  binding.  In  the  case  of 
the  raising  there  can  be  no  parallel  to  this.  The  public  will  really  gain 
by  the  raising,  even  without  being  told  of  it  ofiicially.  The  blockading 
power  which  did  not  notify  the  raising  would  expose  itself  to  diplomatic 
remonstrances  on  the  ground  of  the  non-fulfilment  of  an  international 
duty.  This  non-fulfilment  will  have  more  or  less  serious  consequences, 
according  to  circumstances.  Sometimes  the  raising  of  the  blockade  will 
really  have  become  known  at  once,  and  official  notification  would  add 
nothing  to  this  effective  publicity. 

"It  is  needless  to  add  that  only  the  voluntary  raising  of  a  blockade  is 
here  in  question;  if  the  blockading  force  has  been  driven  off  by  the  arrival 
of  enemy  forces,  it  cannot  be  held  bound  to  make  known  its  defeat,  which 
its  adversary  will  undertake  to  do  without  delay.  Instead  of  raising  a 
blockade,  a  belligerent  may  confine  himself  to  restricting  it;  he  only 
blockades  one  port  instead  of  two.  As  regards  the  port  which  ceases  to 
be  included  in  the  blockade,  it  is  a  case  of  voluntary  raising,  and  conse- 
quently the  same  rule  applies. 

"'Art.  14.  The  liability  of  a  neutral  vessel  to  capture  for  breach  of 
blockade  is  contingent  on  her  knowledge,  actual  or  presumptive,  of  the 
blockade.' 

"For  a  vessel  to  be  liable  to  capture  for  breach  of  blockade,  the  first 
condition  is  that  she  must  be  aware  of  the  blockade,  because  it  is  not  just 
to  punish  some  one  for  breaking  a  rule  which  he  does  not  know.  Never- 
theless, there  are  circumstances  in  which,  even  in  the  absence  of  proof 
of  actual  knowledge,  knowledge  may  be  presumed,  the  right  of  rebutting 
this  presumption  being  always  reserved  to  the  party  concerned.     (Art.  15.) 

"'Art.  15.  Failing  proof  to  the  contrary,  knowledge  of  the  blockade 
is  presumed  if  the  vessel  left  a  neutral  port  subsequently  to  the  notification 
of  the  blockade  to  the  power  to  which  such  port  belongs,  provided  that 
such  notification  was  made  in  sufficient  time.' 

"A  vessel  has  left  a  neutral  port  subsequently  to  the  notification  of 
the  blockade  made  to  the  powers  to  which  the  port  belongs.     Was  this 


560  APPENDIX  IV 

notification  made  in  sufficient  time;  that  is  to  say,  so  as  to  reach  the  port 
in  question,  where  it  had  to  be  published  by  the  port  authorities?  That 
is  a  question  of  fact  to  be  examined.  If  it  is  settled  affirmatively,  it  is 
natural  to  suppose  that  the  vessel  was  aware  of  the  blockade  at  the  time 
of  her  departure.  This  presumption  is  not,  however,  absolute,  and  the 
right  to  adduce  proof  to  the  contrary  is  reserved.  It  is  for  the  incrimi- 
nated vessel  to  furnish  it  by  showing  that  circumstances  existed  which 
explain  her  ignorance. 

"'Art.  16.  If  a  vessel  approaching  a  blockaded  port  has  no  knowledge, 
actual  or  presumptive,  of  the  blockade,  the  notification  must  be  made  to 
the  vessel  itself  by  an  officer  of  one  of  the  ships  of  the  blockading  force. 
This  notification  should  be  entered  in  the  vessel's  log-book,  and  must  state 
the  day  and  hour  and  the  geographical  position  of  the  vessel  at  the  time. 

'"If  through  the  negligence  of  the  officer  commanding  the  blockading 
force  no  declaration  of  blockade  has  been  notified  to  the  local  authorities, 
or  if  in  the  declaration,  as  notified,  no  period  has  been  mentioned  within 
which  neutral  vessels  may  come  out,  a  neutral  vessel  coming  out  of  the 
blockaded  port  must  be  allowed  to  pass  free.' 

"A  vessel  is  supposed  to  be  approaching  a  blockaded  port  without  its 
being  possible  to  tell  whether  she  knows  or  is  presumed  to  know  of  the 
existence  of  the  blockade;  no  notification  in  the  sense  of  article  11  has 
reached  her.  In  that  case  a  special  notification  is  necessary  in  order  that 
the  vessel  may  be  duly  informed  of  the  fact  of  the  blockade.  This  noti- 
fication is  made  to  the  vessel  herself  by  an  officer  of  one  of  the  war-ships  of 
the  blockading  force,  and  is  entered  on  the  vessel's  log-book.  It  may  be 
made  to  the  vessels  of  a  convoyed  fleet  by  a  neutral  war-ship  through  the 
commander  of  the  convoy,  who  acknowledges  receipt  of  it  and  takes  the 
necessary  measures  to  have  the  notification  entered  on  the  log-book  of 
each  vessel.  The  entry  notes  the  time  and  place  where  it  is  made  and 
the  names  of  the  blockaded  places.  The  vessel  is  prevented  from  passing, 
and  the  blockade  is  thus  made  binding  for  her,  though  not  previously 
notified;  this  adverb  is  therefore  omitted  in  article  8.  It  cannot  be  ad- 
mitted that  a  merchant  vessel  should  claim  to  disregard  a  real  blockade, 
and  to  break  it  for  the  sole  reason  that  she  was  not  personally  aware  of 
it.  But,  though  she  may  be  prevented  from  passing,  she  may  only  be 
captured  when  she  tries  to  break  blockade  after  receiving  the  notification. 
This  special  notification  is  seen  to  play  a  very  small  part,  and  must  not 
be  confused  with  the  special  notification  absolutely  insisted  on  by  the 
practice  of  certain  navies. 

"What  has  just  been  said  refers  to  the  vessel  coming  in.  The  vessel 
leaving  the  blockaded  port  must  also  be  considered.  If  a  regular  noti- 
fication of  the  blockade  has  been  made  to  the  local  authorities  (art.  11  (2)  ), 
the  position  is  simple:  the  vessel  is,  or  is  presumed  to  be,  aware  of  the 
blockade,  and  is  therefore  liable  to  capture  in  case  she  has  not  kept  to 
the  period  for  leaving  allowed  by  the  blockading  power.  But  it  may 
happen  that  no  declaration  of  blockade  has  been  notified  to  the  local  au- 


APPENDIX  IV  561 

thoritles,  or  that  that  declaration  has  contained  no  mention  of  tiie  period 
allowed  for  lea^'ing,  in  spite  of  the  rule  prescribed  by  article  9  (3).  The 
sanction  of  the  blockading  power's  offence  is  that  the  vessel  must  be  al- 
lowed to  go  free.  It  is  a  strong  sanction,  which  corresponds  exactly  with 
the  nature  of  the  offence  committed,  and  will  be  the  best  means  of  pre- 
venting its  commission. 

"It  is  needless  to  say  that  this  provision  only  concerns  vessels  to  which 
the  period  allowed  for  leaving  would  have  been  of  use — that  is  to  say, 
neutral  vessels  which  were  in  the  port  at  the  time  when  the  blockade 
was  established;  it  has  nothing  to  do  with  vessels  which  are  in  the  port 
after  hav-ing  broken  blockade. 

"The  commander  of  the  blockading  squadron  may  always  repair  his 
omission  or  mistake,  make  a  notification  of  the  blockade  to  the  local  au- 
thorities, or  complete  that  which  he  has  already  made. 

"As  is  seen  from  these  explanations,  the  most  ordinary  case  is  assumed 
— that  in  which  the  absence  of  notification  implies  negligence  on  the  part 
of  the  commander  of  the  blockading  forces.  The  situation  is  clearly 
altogether  changed  if  the  commander  has  done  all  in  his  power  to  make 
the  notification  but  has  been  prevented  from  doing  so  by  lack  of  good- 
will on  the  part  of  the  local  authorities,  who  have  intercepted  all  com- 
munications from  outside.  In  that  case  he  cannot  be  forced  to  let  pass 
vessels  which  wish  to  leave,  and  which,  in  the  absence  of  the  prescribed 
notification  and  of  presumptive  knowledge  of  the  blockade,  are  in  a  posi- 
tion similar  to  that  contemplated  in  article  16,  paragraph  1. 

"'Art.  17.  Neutral  vessels  may  not  be  captured  for  breach  of  block- 
ade except  within  the  area  of  operations  of  the  war-ships  detailed  to  render 
the  blockade  effective.' 

"The  other  condition  of  the  liability  of  a  vessel  to  capture  is  that  she 
should  be  found  within  the  area  of  operations  of  the  war-ships  detailed  to 
make  the  blockade  effective;  it  is  not  enough  that  she  should  be  on  her 
way  to  the  blockaded  port. 

"As  for  what  constitutes  the  area  of  operations,  an  explanation  has 
been  given  which  has  been  universally  accepted  and  is  quoted  here  as 
furnishing  the  best  commentary  on  the  rule  laid  down  by  article  17: 

"'When  a  government  decides  to  undertake  blockading  operations 
against  some  part  of  the  enemy  coast  it  details  a  certain  number  of  war- 
ships to  take  part  in  the  blockade  and  intrusts  the  command  to  an  officer 
whose  duty  is  to  use  them  for  the  purpose  of  making  the  blockade  effective. 
The  commander  of  the  naval  force  thus  formed  posts  the  ships  at  his  dis- 
posal according  to  the  line  of  the  coast  and  the  geographical  position  of 
the  blockaded  places  and  instructs  each  ship  as  to  the  part  which  she  has 
to  play  and  especially  as  to  the  zone  which  she  is  to  watch.  All  the  zones 
watched  taken  together,  and  so  organized  as  to  make  the  blockade  effective, 
form  the  area  of  operations  of  the  blockading  naval  force. 

"'The  area  of  operations  so  constituted  is  intimately  connected  with 
the  effectiveness  of  the  blockade  and  also  with  the  number  of  ships  em- 
ployed on  it. 


562  APPENDIX  IV 

"'Cases  may  occur  in  which  a  single  ship  will  be  enough  to  keep  a  block- 
ade effective — for  instance,  at  the  entrance  of  a  port  or  at  the  mouth  of 
a  river  with  a  small  estuary,  so  long  as  circumstances  allow  the  blockading 
ship  to  stay  near  enough  to  the  entrance.  In  that  case  the  area  of  opera- 
tions is  itself  near  the  coast.  But,  on  the  other  hand,  if  circumstances 
force  her  to  remain  far  off,  one  ship  may  not  be  enough  to  secure  effective- 
ness, and  to  maintain  this  she  will  then  have  to  be  supported  by  others. 
From  this  cause  the  area  of  operations  becomes  wider  and  extends  farther 
from  the  coast.  It  may  therefore  vary  with  circumstances  and  with  the 
number  of  blockading  ships,  but  it  will  always  be  limited  by  the  condi- 
tion that  effectiveness  must  be  assured. 

'"It  does  not  seem  possible  to  fix  the  limits  of  the  area  of  operations  in 
definite  figures  any  more  than  to  fix  beforehand  and  definitely  the  number 
of  ships  necessary  to  assure  the  effectiveness  of  any  blockade.  These 
points  must  be  settled  according  to  circumstances  in  each  particular  case 
of  a  blockade.  This  might  perhaps  be  done  at  the  time  of  making  the 
declaration. 

'"It  is  clear  that  a  blockade  will  not  be  established  in  the  same  way  on 
a  defenceless  coast  as  on  one  possessing  all  modern  means  of  defence. 
In  the  latter  case  there  could  be  no  question  of  enforcing  a  rule  such  as 
that  which  formerly  required  that  ships  should  be  stationary  and  suffi- 
ciently close  to  the  blockaded  places;  the  position  would  be  too  dangerous 
for  the  ships  of  the  blockading  force  which,  besides,  now  possess  more 
powerful  means  of  watching  effectively  a  much  wider  zone  than  formerly. 

'"The  area  of  operations  of  a  blockading  naval  force  may  be  rather 
wide,  but  as  it  depends  on  the  number  of  ships  contributing  to  the  effec- 
tiveness of  the  blockade  and  is  always  limited  by  the  condition  that  it 
should  be  effective,  it  will  never  reach  distant  seas  where  merchant  vessels 
sail  which  are,  perhaps,  making  for  the  blockaded  ports  but  whose  des- 
tination is  contingent  on  the  changes  which  circumstances  may  produce 
in  the  blockade  during  their  voyage.  To  sum  up,  the  idea  of  the  area  of 
operations  joined  with  that  of  effectiveness,  as  we  have  tried  to  define  it 
— that  is  to  say,  including  the  zone  of  operations  of  the  blockading  forces 
— allows  the  belligerent  effectively  to  exercise  the  right  of  blockade,  which 
he  admittedly  possesses,  and,  on  the  other  hand,  saves  neutrals  from  ex- 
posure to  the  drawbacks  of  blockade  at  a  great  distance,  while  it  leaves 
them  free  to  run  the  risk  which  they  knowingly  incur  by  approaching  points 
to  which  access  is  forbidden  by  the  belligerent.' 

"'Art.  18.  The  blockading  forces  must  not  bar  access  to  neutral 
ports  or  coasts.' 

"This  rule  has  been  thought  necessary  the  better  to  protect  the  com- 
mercial interests  of  neutral  countries;  it  completes  article  1,  according 
to  which  a  blockade  must  not  extend  beyond  the  ports  and  coasts  of  the 
enemy,  which  implies  that,  as  it  is  an  operation  of  war,  it  must  not  be 
directed  against  a  neutral  port,  in  spite  of  the  importance  to  a  belligerent 
of  the  part  played  by  that  neutral  port  in  supplying  his  adversary. 

"'Art.  19.     Whatever  may  be  the  ulterior  destination  of  a  vessel  or 


APPENDIX  IV  563 

of  her  cargo,  she  cannot  be  captured  for  breach  of  blockade  if,  at  the 
moment,  she  is  on  her  way  to  a  non-blockaded  port.' 

"It  is  the  true  destination  of  the  vessel  which  must  be  considered  when 
a  breach  of  blockade  is  in  question,  and  not  the  ulterior  destination  of 
the  cargo.  Proof  or  presumption  of  the  latter  is  therefore  not  enoiigh  to 
justify  the  capture,  for  breach  of  blockade,  of  a  ship  actually  bound  for 
an  unblockaded  port.  But  the  cruiser  might  always  prove  that  this 
destination  to  an  unblockaded  port  is  only  apparent,  and  that  in  reality 
the  immediate  destination  of  the  vessel  is  the  blockaded  port. 

"'Art.  20.  A  vessel  which  has  broken  blockade  outward,  or  which  has 
attempted  to  break  blockade  inward,  is  liable  to  capture  so  long  as  she  is 
pursued  by  a  ship  of  the  blockading  force.  If  the  pursuit  is  abandoned 
or  if  the  blockade  is  raised,  her  capture  can  no  longer  be  effected.' 

"A  vessel  has  left  the  blockaded  port  or  has  tried  to  enter  it.  Shall 
she  remain  indefinitely  liable  to  capture  ?  To  reply  by  an  absolute  affirma- 
tive would  be  to  go  too  far.  This  vessel  must  remain  liable  to  capture  so 
long  as  she  is  pursued  by  a  ship  of  the  blockading  force;  it  would  not  be 
enough  for  her  to  be  encountered  by  a  cruiser  of  the  blockading  enemy 
which  did  not  belong  to  the  blockading  squadron.  The  question  whether 
or  not  the  pursuit  is  abandoned  is  one  of  fact;  it  is  not  enough  that  the 
vessel  should  take  refuge  in  a  neutral  port.  The  ship  which  is  pursuing 
her  can  wait  till  she  leaves  it,  so  that  the  pursuit  is  necessarily  suspended 
but  not  abandoned.  Capture  is  no  longer  possible  when  the  blockade 
has  been  raised. 

"'Art.  21.  A  vessel  found  guilty  of  breach  of  blockade  is  liable  to 
condemnation.  The  cargo  is  also  condemned  unless  it  is  proved  that 
at  the  time  of  the  shipment  of  the  goods  the  shipper  neither  knew  nor  could 
have  known  of  the  intention  to  break  the  blockade.' 

"The  vessel  is  condemned  in  all  cases.  The  cargo  is  also  condemned 
on  principle,  but  the  interested  party  is  allowed  to  oppose  a  plea  of  good 
faith;  that  is  to  say,  to  prove  that  when  the  goods  were  shipped  the  shipper 
did  not  know  and  could  not  have  known  of  the  intention  to  break  the  block- 
ade. 

Chapter  II — Contraband  of  War 

"This  chapter  is  one  of  the  most,  if  not  the  most,  important  of  the 
declaration.  It  deals  with  a  matter  which  has  sometimes  given  rise  to 
serious  disputes  between  belligerents  and  neutrals.  Therefore  regulations 
to  establish  exactly  the  rights  and  duties  of  each  have  often  been  urgently 
called  for.  Peaceful  trade  may  be  grateful  for  the  precision  with  which 
a  subject  of  the  highest  importance  to  its  interests  is  now  for  the  first 
time  treated. 

"The  notion  of  contraband  of  war  connotes  two  elements:  It  concerns 
objects  of  a  certain  kind  and  with  a  certain  destination.  Cannons,  for 
instance,  are  carried  in  a  neutral  vessel.  Are  they  contraband  ?  That 
depends;   if  they  are  destined  for  a  neutral  government,  no;   if  they  are 


564  APPENDIX  IV 

destined  for  an  enemy  government,  yes.  The  trade  in  certain  articles  13 
by  no  means  generally  forbidden  during  war;  it  is  the  trade  with  the  enemy 
in  these  articles  which  is  illicit  and  against  which  the  belligerent  to  whose 
detriment  it  is  carried  on  may  protect  himself  by  the  measures  allowed 
by  international  law. 

"Articles  22  and  24  enumerate  the  articles  which  may  be  contraband 
of  war  and  which  are  so,  in  fact,  when  they  have  a  certain  destination 
laid  down  in  articles  30  and  33.  The  traditional  distinction  between 
absolute  and  conditional  contraband  is  maintained.  Articles  22  and  30 
refer  to  the  former,  and  articles  24  and  33  to  the  latter. 

"'Art.  22.  The  following  articles  may,  without  notice,^  be  treated 
as  contraband  of  war,  under  the  name  of  absolute  contraband: 

"'(1)  Arms  of  all  kinds,  including  arms  for  sporting  purposes,  and  their 
distinctive  component  parts. 

"'(2)  Projectiles,  charges,  and  cartridges  of  all  kinds  and  their  distinc- 
tive component  parts. 

"'(3)  Powder  and  explosives  specially  prepared  for  use  in  war. 

"'(4)  Gun-mountings,  limber-boxes,  limbers,  military  wagons,  field 
forges,  and  their  distinctive  component  parts. 

"'(5)  Clothing  and  equipment  of  a  distinctively  military  character. 

*"(6)  All  kinds  of  harness  of  a  distinctively  military  character, 

"'(7)  Saddle,  draught,  and  pack  animals  suitable  for  use  in  war. 

'"(8)  Articles  of  camp  equipment  and  their  distinctive  component 
parts. 

'"(9)  Armor-plates. 

'"(10)  War-ships,  including  boats  and  their  distinctive  component 
parts  of  such  a  nature  that  they  can  only  be  used  on  a  vessel  of  war. 

"'(11)  Implements  and  apparatus  designed  exclusively  for  the  manu- 
facture of  munitions  of  war,  for  the  manufacture  or  repair  of  arms,  or  war 
material  for  use  on  land  or  sea.' 

"This  list  is  that  drawn  up  at  the  second  peace  conference  by  the  com- 
mittee charged  with  the  special  study  of  the  question  of  contraband.  It 
was  the  result  of  mutual  concessions,  and  it  has  not  seemed  wise  to  reopen 
the  discussion  on  this  subject  for  the  purpose  either  of  cutting  out  or  of 
adding  articles. 

"The  words  'de  plein  droit'  (without  notice)  imply  that  the  provision 
becomes  operative  by  the  mere  fact  of  the  war  and  that  no  declaration 
by  the  belligerents  is  necessary.  Trade  is  already  warned  in  time  of 
peace. 

"'Art.  23.  Articles  exclusively  used  for  war  may  be  added  to  the 
list  of  absolute  contraband  by  a  declaration,  which  must  be  notified. 

"'Such  notification  must  be  addressed  to  the  governments  of  other 

1  In  view  of  the  difficulty  of  finding  an  exact  equivalent  in  English  for 
the  expression  "de  plein  droit,"  it  has  been  decided  to  translate  it  by  the 
words  "without  notice,"  which  represent  the  meaning  attached  to  it  by 
the  draughtsman  of  the  present  General  Report. 


APPENDIX  IV  565 

powers  or  to  their  representatives  accredited  to  the  power  making  the 
declaration.  A  notification  made  after  the  outbreak  of  hostilities  is  ad- 
dressed only  to  neutral  powers.' 

"Certain  discoveries  or  inventions  might  make  the  list  in  article  22  in- 
sufficient. An  addition  may  be  made  to  it  on  condition  that  it  concerns 
articles  exclusively  used  for  war.  This  addition  must  be  notified  to  the 
other  powers,  which  will  take  the  necessary  measures  to  inform  their  sub- 
jects of  it.  In  theory  the  notification  may  be  made  in  time  of  peace  or 
of  war.  The  former  case  will  doubtless  rarely  occur,  because  a  state 
which  made  such  a  notification  might  be  suspected  of  meditating  a  war; 
it  would,  nevertheless,  have  the  advantage  of  informing  trade  before- 
hand.    There  was  no  reason  for  making  it  impossible. 

"The  right  given  to  a  power  to  make  an  addition  to  the  list  by  a  mere 
declaration  has  been  thought  too  wide.  It  should  be  noticed  that  this 
right  does  not  involve  the  dangers  supposed.  In  the  first  place,  it  is  under- 
stood that  the  declaration  is  only  operative  for  the  power  which  makes  it, 
in  the  sense  that  the  article  added  will  only  be  contraband  for  it,  as  a 
belligerent;  other  states  may,  of  course,  also  make  a  similar  declaration. 
The  addition  may  only  refer  to  articles  exclusively  used  for  war;  at  pres- 
ent it  would  be  hard  to  mention  any  such  articles  which  are  not  included 
in  the  list.  The  future  is  left  free.  If  a  power  claimed  to  add  to  the  list 
of  absolute  contraband  articles  not  exclusively  used  for  war,  it  might 
expose  itself  to  diplomatic  remonstrances,  because  it  would  be  disregard- 
ing an  accepted  rule.  Besides,  there  would  be  an  eventual  resort  to  the 
international  prize-court.  Suppose  that  the  court  holds  that  the  article 
mentioned  in  the  declaration  of  absolute  contraband  is  wrongly  placed 
there  because  it  is  not  exclusively  used  for  war,  but  that  it  might  have 
been  included  in  a  declaration  of  conditional  contraband.  Confiscation 
may  then  be  justified  if  the  captiu-e  was  made  in  the  conditions  laid  down 
for  this  kind  of  contraband  (arts.  33-35)  which  differ  from  those  enforced 
for  absolute  contraband  (art.  30). 

"It  had  been  suggested  that,  in  the  interest  of  neutral  trade,  a  period 
should  lapse  between  the  notification  and  its  enforcement.  But  that 
would  be  very  damaging  to  the  belligerent,  whose  object  is  precisely  to 
protect  himself,  since,  during  that  period,  the  trade  in  articles  which  he 
thinks  dangerous  would  be  free  and  the  effect  of  his  measure  a  failure. 
Account  has  been  taken,  in  another  form,  of  the  considerations  of  equity 
which  have  been  adduced.     (See  art.  43.) 

"'Art.  24.  The  following  articles,  susceptible  of  use  in  war  as  well 
as  for  purposes  of  peace,  may,  without  notice,*  be  treated  as  contraband 
of  war,  under  the  name  of  conditional  contraband: 

"'(1)  Foodstuffs. 

"'(2)  Forage  and  grain,  suitable  for  feeding  animals. 

"'(3)  Clothing,  fabrics  for  clothing,  and  boots  and  shoes  suitable  for 
use  in  war. 

*  Sec  note  to  art.  23. 


666  APPENDIX  IV 

'"(4)  Gold  and  silver  in  coin  or  bullion;  paper  money. 

"'(5)  Vehicles  of  all  kinds  available  for  use  in  war  and  their  com- 
ponent parts. 

'"(6)  Vessels,  craft,  and  boats  of  all  kinds;  floating  docks,  parts  of 
docks,  and  their  component  parts. 

'"(7)  Railway  material,  both  fixed  and  rolling  stock,  and  material  for 
telegraphs,  wireless  telegraphs,  and  telephones. 

'"(8)  Balloons  and  flying-machines  and  their  distinctive  compo  lent 
parts,  together  with  accessories  and  articles  recognizable  as  intended  for 
use  in  connection  with  balloons  and  flying-machines, 

'"(9)  Fuel;  lubricants. 

*"(10)  Powder  and  explosives  not  specially  prepared  for  use  in  war. 

'"(11)  Barbed  wire  and  implements  for  fixing  and  cutting  the  same. 

"'(12)  Horseshoes  and  shoeing  materials. 

"'(13)  Harness  and  saddlery. 

"'(14)  Field-glasses,  telescopes,  chronometers,  and  all  kinds  of  nautical 
instruments.' 

"On  the  expression  'de  plein  droit'  (without  notice)  the  same  remark 
must  be  made  as  -with  regard  to  article  22.  The  articles  enumerated  are 
only  conditional  contraband  if  they  have  the  destination  specified  in 
article  33. 

"Foodstuffs  include  products  necessary  or  useful  for  sustaining  man, 
whether  solid  or  liquid. 

"Paper  money  only  includes  inconvertible  paper  money,  i.  e.,  bank- 
notes which  may  or  not  be  legal  tender.  Bills  of  exchange  and  checks  are 
excluded. 

"Engines  and  boilers  are  included  in  (6). 

"Railway  material  includes  fixtures  (such  as  rails,  sleepers,  turntables, 
parts  of  bridges)  and  rolling-stock  (such  as  locomotives,  carriages,  and 
trucks). 

'"Art.  25.  Articles  susceptible  of  use  in  war  as  well  as  for  purposes  of 
peace,  other  than  those  enumerated  in  articles  22  and  24,  may  be  added 
to  the  list  of  conditional  contraband  by  a  declaration,  which  must  be 
notified  in  the  manner  provided  for  in  the  second  paragraph  of  article  23.* 

"This  provision  corresponds,  as  regards  conditional  contraband,  to 
that  in  article  23  as  regards  absolute  contraband. 

"'Art.  26.  If  a  power  waives,  so  far  as  it  is  concerned,  the  right  to 
treat  as  contraband  of  war  an  article  comprised  in  any  of  the  classes  enu- 
merated in  articles  22  and  24,  such  intention  shall  be  announced  by  a 
declaration,  which  must  be  notified  in  the  manner  provided  for  in  the  sec- 
ond paragraph  of  article  23.' 

"A  belligerent  may  not  wish  to  use  the  right  to  treat  as  contraband  of 
war  all  the  articles  included  in  the  above  lists.  It  may  suit  him  to  add  to 
conditional  contraband  an  article  included  in  absolute  contraband  or  to 
declare  free,  so  far  as  he  is  concerned,  the  trade  in  some  article  included 
in  one  class  or  the  other.    It  is  desirable  that  he  should  make  known  his 


APPENDIX  IV  567 

intention  on  this  subject,  and  he  will  probably  do  so  in  order  to  have  the 
credit  of  the  measure.  If  he  does  not  do  so,  but  confines  himself  to  giving 
instructions  to  his  cruisers,  the  vessels  searched  will  be  agreeably  surprised 
if  the  searcher  does  not  reproach  them  with  carrying  what  they  themselves 
consider  contraband.  Nothing  can  prevent  a  power  from  making  such  a 
declaration  in  time  of  peace.     See  what  is  said  as  regards  article  23. 

"'Art.  27.  Articles  which  are  not  susceptible  of  use  in  war  may  not 
be  declared  contraband  of  war.' 

"The  existence  of  a  so-called  free  list  (art.  28)  makes  it  useful  thus  to 
put  on  record  that  articles  which  cannot  be  used  for  purposes  of  war 
may  not  be  declared  contraband  of  war.  It  might  have  been  thought 
that  articles  not  included  in  that  list  might  at  least  be  declared  condi- 
tional contraband. 

"'Art.  28.     The  following  may  not  be  declared  contraband  of  war: 

"'(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other  raw  materials 
of  the  textile  industries  and  yarns  of  the  same. 

"'(2)  Oil-seeds  and  nuts;  copra. 

"'(3)  Rubber,  resins,  gums,  and  lacs;  hops. 

'"(4)  Rawhides,  horns,  bones,  and  ivory. 

*"(5)  Natural  and  artificial  manures,  including  nitrates  and  phosphates 
for  agricultural  purposes. 

"'(6)  Metallic  ores. 

*"(7)  Earths,  clays,  lime,  chalk;  stone,  including  marble,  bricks,  slates, 
and  tiles. 

"'(8)  Chinaware  and  glass. 

"'(9)  Paper  and  paper-making  materials. 

"'(10)  Soap,  paint,  and  colors,  including  articles  exclusively  used  in 
their  manufacture,  and  varnish. 

"'(11)  Bleaching-powder,  soda-ash,  caustic  soda,  salt-cake,  ammonia, 
sulphate  of  ammonia,  and  sulphate  of  copper. 

"'(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

"'(13)  Precious  and  semiprecious  stones,  pearls,  mother-of-pearl,  and 
coral. 

"'(14)  Clocks  and  watches,  other  than  chronometers. 

"'(15)  Fashion  and  fancy  goods. 

"'(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

"'(17)  Articles  of  household  furniture  and  decoration;  office  furniture 
and  requisites.' 

"To  lessen  the  drawbacks  of  war  as  regards  neutral  trade  it  has  been 
thought  useful  to  draw  up  this  so-called  free  list,  but  this  does  not  mean, 
as  has  been  explained  above,  that  all  articles  outside  it  might  be  declared 
contraband  of  war. 

"The  ores  here  referred  to  are  the  product  of  mines  from  which  metals 
are  derived. 

"There  was  a  demand  that  dyestuffs  should  be  included  in  (10),  but 
this  seemed  too  general,  for  there  are  materials  from  which  colors  are 


568  APPENDIX  IV 

derived,  such  as  coal,  which  also  have  other  uses.     Products  only  used 
for  making  colors  enjoy  the  exemption. 

'"Articles  de  Paris,'  an  expression  the  meaning  of  which  is  universally 
understood,  come  under  (15). 

"(16)  refers  to  the  hair  of  certain  animals,  such  as  pigs  and  wild  boars, 
"Carpets  and  mats  come  under  household  furniture  and  ornaments  (17). 
"'Art.  29.     Likewise  the  following  may  not  be  treated  as  contraband 
of  war: 

'"(1)  Articles  serving  exclusively  to  aid  the  sick  and  wounded.  They 
can,  however,  in  case  of  m-gent  military  necessity  and  subject  to  the  pay- 
ment of  compensation,  be  requisitioned,  if  their  destination  is  that  speci- 
fied in  article  30. 

" '  (2)  Articles  intended  for  the  use  of  the  vessel  in  which  they  are  found, 
as  well  as  those  intended  for  the  use  of  her  crew  and  passengers  during 
the  voyage.' 

"The  articles  enumerated  in  article  29  are  also  excluded  from  treatment 
as  contraband,  but  for  reasons  different  from  those  which  have  led  to 
the  inclusion  of  the  list  in  article  28. 

"Motives  of  humanity  have  exempted  articles  exclusively  used  to  aid 
the  sick  and  wounded,  which,  of  course,  include  drugs  and  different  medi- 
cines. This  does  not  refer  to  hospital  ships,  which  enjoy  special  immunity 
under  the  convention  of  The  Hague  of  the  ISth  October,  1907,  but  to 
ordinary  merchant  vessels,  whose  cargo  includes  articles  of  the  kind  men- 
tioned. The  cruiser  has,  however,  the  right,  in  case  of  urgent  necessity, 
to  requisition  such  articles  for  the  needs  of  her  crew  or  of  the  fleet  to  which 
she  belongs,  but  they  can  only  be  requisitioned  on  payment  of  compensa- 
tion. It  must,  however,  be  observed  that  this  right  of  requisition  may  not 
be  exercised  in  all  cases.  The  articles  in  question  must  have  the  destina- 
tion specified  in  article  30 — that  is  to  say,  an  enemy  destination.  Other- 
wise, the  ordinary  law  regains  its  sway;  a  belligerent  could  not  have  the 
right  of  requisition  as  regards  neutral  vessels  on  the  high  seas. 

"Articles  intended  for  the  use  of  the  vessel,  which  might  in  themselves 
and  by  their  nature  be  contraband  of  war,  may  not  be  so  treated;  for  in- 
stance, arms  intended  for  the  defence  of  the  vessel  against  pirates  or  for 
making  signals.  The  same  is  true  of  articles  intended  for  the  use  of  the 
crew  and  passengers  during  the  voyage;  the  crew  here  includes  all  persons 
in  the  service  of  the  vessel  in  general. 

"Destination  of  Contraband. — As  has  been  said,  the  second  element  in 
the  notion  of  contraband  is  destination.  Great  difficulties  have  arisen 
on  this  subject,  which  find  expression  in  the  theory  of  continuous  voyage, 
so  often  attacked  or  adduced  without  a  clear  comprehension  of  its  exact 
meaning.  Cases  must  simply  be  considered  on  their  merits  so  as  to  see 
how  they  can  be  settled  without  unnecessarily  annoying  neutrals  or  sacri- 
ficing the  legitimate  rights  of  belligerents. 

"In  order  to  effect  a  compromise  between  conflicting  theories  and  prac- 
tices, absolute  and  conditional  contraband  have  been  differently  treated 
in  this  connection. 


APPENDIX  IV  5G9 

"Articles  30  to  32  refer  to  absolute,  and  articles  33  to  36  to  conditional, 
contraband. 

"'Art.  30.  Absolute  contraband  is  liable  to  capture  if  it  is  shown  to 
be  destined  to  territory  belonging  to  or  occupied  by  the  enemy  or  to  the 
armed  forces  of  the  enemy.  It  is  immaterial  whether  the  carriage  of  the 
goods  is  direct  or  entails  transshipment  or  a  subsequent  transport  by  land.* 

"The  articles  included  in  the  list  in  article  22  are  absolute  contraband 
when  they  are  destined  for  territory  belonging  to  or  occupied  by  the 
enemy  or  for  his  armed  military  or  naval  forces.  These  articles  are  liable 
to  capture  as  soon  as  a  final  destination  of  this  kind  can  be  shown  by  the 
captor  to  exist.  It  is  not,  therefore,  the  destination  of  the  vessel  which  is 
decisive  but  that  of  the  goods.  It  makes  no  difference  if  these  goods  are 
on  board  a  vessel  which  is  to  discharge  them  in  a  neutral  port;  as  soon 
as  the  captor  is  able  to  show  that  they  are  to  be  forwarded  from  there  by 
land  or  sea  to  an  enemy  country  it  is  enough  to  justify  the  capture  and 
subsequent  condemnation  of  the  cargo.  The  very  principle  of  continuous 
voyage,  as  regards  absolute  contraband,  is  established  by  article  30.  The 
journey  made  by  the  goods  is  regarded  as  a  whole. 

'"Art.  31.  Proof  of  the  destination  specified  in  article  30  is  complete 
in  the  following  cases: 

'"(1)  When  the  goods  are  documented  for  discharge  in  an  enemy  port 
or  for  delivery  to  the  armed  forces  of  the  enemy. 

"'(2)  When  the  vessel  is  to  call  at  enemy  ports  only,  or  when  she  is  to 
touch  at  an  enemy  port  or  meet  the  armed  forces  of  the  enemy  before 
reaching  the  neutral  port  for  which  the  goods  in  question  are  documented.' 

"As  has  been  said,  the  obligation  of  proving  that  the  contraband  goods 
really  have  the  destination  specified  in  article  30  rests  with  the  captor. 
In  certain  cases  proof  of  the  destination  specified  in  article  31  is  conclusive; 
that  is  to  say,  the  proof  may  not  be  rebutted. 

"First  Case. — The  goods  are  documented  for  discharge  in  an  enemy 
port;  that  is  to  say,  according  to  the  ship's  papers  referring  to  those  goods, 
they  are  to  be  discharged  there.  In  this  case  there  is  a  real  admission  of 
enemy  destination  on  the  part  of  the  interested  parties  themselves. 

"Second  Case. — The  vessel  is  to  touch  at  enemy  ports  only,  or  she  is 
to  touch  at  an  enemy  port  before  reaching  the  neutral  port  for  which  the 
goods  are  documented,  so  that  although  these  goods,  according  to  the 
papers  referring  to  them,  are  to  be  discharged  in  a  neutral  port,  the  vessel 
carrying  them  is  to  touch  at  an  enemy  port  before  reaching  that  neutral 
port.  They  will  be  liable  to  capture,  and  the  possibility  of  proving  that 
their  neutral  destination  is  real  and  in  accordance  with  the  intentions  of 
the  parties  interested  is  not  admitted.  The  fact  that  before  reaching  that 
destination  the  vessel  will  touch  at  an  enemy  port  would  occasion  too  great 
a  risk  for  the  belligerent  whose  cruiser  searches  the  vessel.  Even  without 
assuming  that  there  is  intentional  fraud,  there  might  be  a  strong  tempta- 
tion for  the  master  of  tlie  merchant  vessel  to  discharge  the  contrabanrl,  for 
which  he  would  get  a  good  price,  and  for  the  local  authorities  to  requisition 
the  goods.  I 


570  APPENDIX  IV 

"The  same  case  arises  where  the  vessel,  before  reaching  the  neutral 
port,  is  to  join  the  armed  forces  of  the  enemy. 

"For  the  sake  of  simphcity,  the  provision  only  speaks  of  an  enemy 
port,  but  it  is  understood  that  a  port  occupied  by  the  enemy  must  be  re- 
garded as  an  enemy  port,  as  follows  from  the  general  rule  in  article  30. 

"'Art.  32.  Where  a  vessel  is  carrying  absolute  contraband,  her  papers 
are  conclusive  proof  as  to  the  voyage  on  which  she  is  engaged,  unless  she 
is  found  clearly  out  of  the  course  indicated  by  her  papers  and  unable  to 
give  adequate  reasons  to  justify  such  deviation.' 

"The  papers  therefore  are  conclusive  proof  of  the  course  of  the  vessel, 
unless  she  is  encountered  in  circumstances  which  show  that  their  statements 
are  not  to  be  trusted.     See  also  the  explanations  given  as  regards  article  35. 

"'Art.  33.  Conditional  contraband  is  liable  to  capture  if  it  is  shown 
to  be  destined  for  the  use  of  the  armed  forces  or  of  a  government  depart- 
ment of  the  enemy  state,  unless  in  this  latter  case  the  circumstances  show 
that  the  goods  cannot,  in  fact,  be  used  for  the  purposes  of  the  war  in  prog- 
ress. This  latter  exception  does  not  apply  to  a  consignment  coming  under 
article  24  (4).' 

"The  rules  for  conditional  contraband  differ  from  those  laid  down  for 
absolute  contraband  in  two  respects:  (1)  There  is  no  question  of  destina- 
tion for  the  enemy  in  general  but  of  destination  for  the  use  of  his  armed 
forces  or  government  departments;  (2)  the  doctrine  of  continuous  voyage 
is  excluded.  Articles  33  and  34  refer  to  the  first  and  article  35  to  the 
second  principle. 

"The  articles  included  in  the  list  of  conditional  contraband  may  serve 
for  peaceful  uses  as  well  as  for  hostile  purposes.  If  from  the  circumstances 
the  peaceful  purpose  is  clear,  their  capture  is  not  justified;  it  is  otherwise 
if  a  hostile  purpose  is  to  be  assumed,  as,  for  instance,  in  the  case  of  food- 
stuffs destined  for  an  enemy  army  or  fleet,  or  of  coal  destined  for  an  enemy 
fleet.  In  such  a  case  there  is  clearly  no  room  for  doubt.  But  what  is  the 
solution  when  the  articles  are  destined  for  the  civil  government  depart- 
ments of  the  enemy  state?  It  may  be  money  sent  to  a  government  de- 
partment for  use  in  the  payment  of  its  official  salaries  or  rails  sent  to  a 
department  of  public  works.  In  these  cases  there  is  enemy  destination 
which  renders  the  goods  liable  in  the  first  place  to  capture  and  in  the  second 
to  condemnation.  The  reasons  for  this  are  at  once  legal  and  practical. 
The  state  is  one,  although  it  necessarily  acts  through  different  departments. 
If  a  civil  department  may  freely  receive  foodstuffs  or  money,  that  depart- 
ment is  not  the  only  gainer  but  the  entu-e  state,  including  its  military 
administration,  gains  also,  since  the  general  resources  of  the  state  are 
thereby  increased.  Further,  the  receipts  of  a  civil  department  may  be 
considered  of  greater  use  to  the  military  administration  and  directly  as- 
signed to  the  latter.  Money  or  foodstuffs  really  destined  for  a  civil  de- 
partment may  thus  come  to  be  used  directly  for  the  needs  of  the  army. 
This  possibility,  which  is  always  present,  shows  why  destination  for  the 
departments  of  the  enemy  state  is  assimilated  to  that  for  its  armed  forces. 


APPENDIX  IV  5M 

"It  is  the  departments  of  the  state  which  are  dependent  on  the  centr£^ 
power  that  are  in  question  and  not  all  the  departments  which  may  exist 
in  the  enemy  state;  local  and  municipal  bodies,  for  instance,  are  not  in- 
cluded, and  articles  destined  for  their  use  would  not  be  contraband. 

"War  may  be  waged  in  such  circumstances  that  destination  for  the  use 
of  a  civil  department  cannot  be  suspect,  and  consequently  cannot  make 
goods  contraband.  For  instance,  there  is  a  war  in  Europe,  and  the  col- 
onies of  the  belligerent  countries  are  not  in  fact  affected  by  it.  Foodstuffs 
or  other  articles  in  the  list  of  conditional  contraband  destined  for  the  use 
of  the  civil  government  of  a  colony  would  not  be  held  to  be  contraband 
of  war,  because  the  considerations  adduced  above  do  not  apply  to  their 
case;  the  resources  of  the  civil  government  cannot  be  drawn  on  for  the 
needs  of  the  war.  Gold,  silver,  or  paper  money  are  exceptions,  because  a 
sum  of  money  can  easily  be  sent  from  one  end  of  the  world  to  the  other. 

"'AuT.  34.  The  destination  referred  to  in  article  33  is  presumed  to 
exist  if  the  goods  are  consigned  to  enemy  authorities,  or  to  a  contractor 
established  in  the  enemy  country,  who,  as  a  matter  of  common  knowledge, 
supplies  articles  of  this  kind  to  the  enemy.  A  similar  presumption  arises 
if  the  goods  are  consigned  to  a  fortified  place  belonging  to  the  enemy,  or 
other  place  serving  as  a  base  for  the  armed  forces  of  the  enemy.  No  such 
presumption,  however,  arises  in  the  case  of  a  merchant  vessel  bound  for 
one  of  these  places  if  it  is  sought  to  prove  that  she  herself  is  contraband. 

"'In  cases  where  the  above  presumptions  do  not  arise,  the  destination 
is  presumed  to  be  innocent. 

"'The  presumptions  set  up  by  this  article  may  be  rebutted.' 

"Contraband  articles  will  not  usually  be  directly  addressed  to  the  mili- 
tary authorities  or  to  the  government  departments  of  the  enemy  state. 
Their  true  destination  will  be  more  or  less  concealed,  and  the  captor  must 
prove  it  in  order  to  justify  their  capture.  But  it  has  been  thought  reason- 
able to  set  up  presumptions  based  on  the  nature  of  the  person  to  whom, 
or  place  for  which,  the  articles  are  destined.  It  may  be  an  enemy  authority 
or  a  trader  established  in  an  enemy  country  who,  as  a  matter  of  common 
knowledge,  supplies  the  enemy  government  with  articles  of  the  kind  in 
question.  It  may  be  a  fortified  place  belonging  to  the  enemy  or  a  place 
used  as  a  base,  whether  of  operations  or  of  supply,  for  the  armed  forces  of 
the  enemy. 

"Tliis  general  presumption  may  not  be  applied  to  the  merchant  vessel 
herself  on  her  way  to  a  fortified  place,  though  she  may  in  herself  be  condi- 
tional contraband,  but  only  if  her  destination  for  the  use  of  the  armed 
forces  or  government  departments  of  the  enemy  state  is  directly  proved. 

"In  the  absence  of  the  above  presumptions,  the  destination  is  presumed 
to  be  innocent.  That  is  the  ordinary  law,  according  to  which  the  captor 
must  prove  the  illicit  character  of  the  goods  which  he  claims  to  capture. 

"Finally,  all  the  presumptions  thus  set  up  in  the  interest  of  the  captor 
or  against  him  may  be  rebutte<l.  The  national  tribunals,  in  the  first  place, 
and,  in  the  second,  the  international  court,  will  exercise  their  judgment. 


572  APPENDIX  IV 

"'Art.  35.  Conditional  contraband  is  not  liable  to  capture,  except 
when  found  on  board  a  vessel  bound  for  territory  belonging  to  or  occupied 
by  the  enemy,  or  for  the  armed  forces  of  the  enemy,  and  when  it  is  not  to 
be  discharged  in  an  intervening  neutral  port. 

"'The  ship's  papers  are  conclusive  proof  both  as  to  the  voyage  on  which 
the  vessel  is  engaged  and  as  to  the  port  of  discharge  of  the  goods,  unless 
she  is  found  clearly  out  of  the  course  indicated  by  her  papers  and  unable 
to  give  adequate  reasons  to  justify  such  deviation.' 

"As  has  been  said  above,  the  doctrine  of  continuous  voyage  is  excluded 
for  conditional  contraband,  which  is  only  liable  to  capture  when  it  is  to 
be  discharged  in  an  enemy  port.  As  soon  as  the  goods  are  documented  for 
discharge  in  a  neutral  port  they  can  no  longer  be  contraband,  and  no  ex- 
amination will  be  made  as  to  whether  they  are  to  be  forwarded  to  the 
enemy  by  sea  or  land  from  that  neutral  port.  It  is  here  that  the  case  of 
absolute  contraband  is  essentially  different. 

"The  ship's  papers  furnish  complete  proof  as  to  the  voyage  on  which 
the  vessel  is  engaged  and  as  to  the  place  where  the  cargo  is  to  be  dis- 
charged; but  this  would  not  be  so  if  the  vessel  were  encountered  clearly 
out  of  the  course  which  she  should  follow  according  to  her  papers  and 
unable  to  give  adequate  reasons  to  justify  such  deviation. 

"This  rule  as  to  the  proof  furnished  by  the  ship's  papers  is  intended 
to  prevent  claims  frivolously  raised  by  a  cruiser  and  giv'ing  rise  to  unjus- 
tifiable captures.  It  must  not  be  too  literally  interpreted,  for  that  would 
make  all  frauds  easy.  Thus  it  does  not  hold  good  when  the  vessel  is  en- 
countered at  sea  clearly  out  of  the  course  which  she  ought  to  have  followed 
and  unable  to  justify  such  deviation.  The  ship's  papers  are  then  in  con- 
tradiction with  the  true  facts  and  lose  all  value  as  evidence;  the  cruiser 
will  be  free  to  decide  according  to  the  merits  of  the  case.  In  the  same 
way,  a  search  of  the  vessel  may  reveal  facts  which  irrefutably  prove  that 
her  destination,  or  the  place  where  the  goods  are  to  be  discharged,  is  in- 
correctly entered  in  the  ship's  papers.  The  commander  of  the  cruiser  is 
then  free  to  judge  of  the  circumstances  and  capture  the  vessel  or  not 
according  to  his  judgment.  To  resume,  the  ship's  papers  are  proof,  un- 
less facts  show  their  evidence  to  be  false.  This  qualification  of  the  value 
of  the  ship's  papers  as  proof  seems  self-evident  and  unworthy  of  special 
mention.  The  aim  has  been  not  to  appear  to  weaken  the  force  of  the 
general  rule,  which  forms  a  safeguard  for  neutral  trade. 

"It  does  not  follow  that  because  a  single  entry  in  the  ship's  papers  is 
shown  to  be  false  their  evidence  loses  its  value  as  a  whole.  The  entries 
which  cannot  be  proved  false  retain  their  value. 

"'Art.  36.  Notwithstanding  the  provisions  of  article  35,  conditional 
contraband,  if  showTi  to  have  the  destination  referred  to  in  article  33,  is 
liable  to  capture  in  cases  where  the  enemy  country  has  no  seaboard.' 

"The  case  contemplated  is  certainly  rare  but  has  nevertheless  arisen 
in  recent  wars.  In  the  case  of  absolute  contraband,  there  is  no  difficulty, 
since  destination  for  the  enemy  may  always  be  proved,  whatever  the  route 


APPENDIX  IV  573 

by  which  the  goods  are  sent.  (Art.  30.)  For  conditional  contraband  the 
case  is  different,  and  an  exception  must  be  made  to  the  general  rule  laid 
down  in  article  35,  paragraph  1,  so  as  to  allow  the  captor  to  prove  that  the 
suspected  goods  really  have  the  special  destination  referred  to  in  article 
33  without  the  possibility  of  being  confronted  by  the  objection  that  they 
were  to  be  discharged  in  a  neutral  port. 

'"Akt.  37.  A  vessel  carrying  goods  liable  to  capture  as  absolute  or 
conditional  contraband  may  be  captured  on  the  high  seas  or  in  the  terri- 
torial waters  of  the  belligerents  throughout  the  whole  of  her  voyage,  even 
if  she  is  to  touch  at  a  port  of  call  before  reaching  the  hostile  destination.' 

"The  vessel  may  be  captured  for  contraband  during  the  whole  of  her 
voyage,  provided  that  she  is  in  waters  where  an  act  of  war  is  lawful.  The 
fact  that  she  intends  to  touch  at  a  port  of  call  before  reaching  the  enemy 
destination  does  not  prevent  capture,  provided  that  destination  in  her 
particular  case  is  proved  in  conformity  with  the  rules  laid  down  in  articles 
30  to  32  for  absolute,  and  in  articles  33  to  35  for  conditional,  contraband, 
subject  to  the  exception  provided  for  in  article  36. 

'"Art.  3S.  A  vessel  may  not  be  captured  on  the  ground  that  she  has 
carried  contraband  on  a  previous  occasion  if  such  carriage  is  in  point  of 
fact  at  an  end.' 

"A  vessel  is  liable  to  capture  for  carrying  contraband,  but  not  for  having 
done  so. 

'"Art.  39.     Contraband  goods  are  liable  to  condemnation.' 

"This  presents  no  difficulty. 

"'Art.  40.  A  vessel  carrying  contraband  may  be  condemned  if  the 
contraband,  reckoned  either  by  value,  weight,  volume,  or  freight,  forms 
more  than  half  the  cargo.' 

"It  was  universally  admitted  that  in  certain  cases  the  condemnation 
of  the  contraband  is  not  enough  and  that  the  vessel  herself  should  also 
be  condemned,  but  opinions  differed  as  to  what  these  cases  were.  It  was 
decided  that  the  contraband  must  bear  a  certain  proportion  to  the  total 
cargo.  But  the  question  divides  itself  into  two  parts:  (1)  What  shall  be 
the  proportion  ?  The  solution  adopted  is  the  mean  between  those  proposed, 
which  varied  from  a  quarter  to  three  quarters.  (2)  How  shall  this  propor- 
tion be  reckoned?  Must  the  contraband  form  more  than  half  the  cargo 
in  volume,  weight,  value,  or  freight?  The  adoption  of  a  single  fixed  stand- 
ard gives  rise  to  theoretical  objections  and  also  to  practices  intended  to 
avoid  condemnation  of  the  vessel  in  spite  of  the  importance  of  tlie  cargo. 
If  the  standard  of  volume  or  weight  is  adopted,  the  master  will  ship  inno- 
cent goods,  occupying  space,  or  of  weight,  sufficient  to  exceed  the  contra- 
band. A  similar  remark  may  be  made  as  regards  the  standard  of  value 
or  freight.  Tiie  consequence  is  that,  in  order  to  justify  condemnation,  it 
is  enough  that  the  contraband  should  form  more  than  half  the  cargo  by 
any  one  of  the  above  standards.  This  may  seem  harsh;  l)ut,  on  the  one 
hand,  any  other  system  would  make  fraudulent  calculations  easy,  and,  on 
the  other,  the  condemnation  of  the  vessel  may  be  said  to  be  justified  when 


574  APPENDIX  IV 

the  carriage  of  contraband  formed  an  important  part  of  her  venture — a 
statement  which  applies  to  all  the  cases  specified. 

"'Art.  41.  If  a  vessel  carrying  contraband  is  released,  she  may  be 
condemned  to  pay  the  costs  and  expenses  incurred  by  the  captor  in  respect 
of  the  proceedings  in  the  national  prize-court  and  the  custody  of  the  ship 
and  cargo  during  the  proceedings.' 

"It  is  not  just  that,  on  the  one  hand,  the  carriage  of  more  than  a  certain 
proportion  of  contraband  should  involve  the  condemnation  of  the  vessel, 
while  if  the  contraband  forms  less  than  this  proportion,  it  alone  is  confis- 
cated. This  often  involves  no  loss  for  the  master,  the  freight  of  this  con- 
traband having  been  paid  in  advance.  Does  this  not  encourage  trade  in 
contraband,  and  ought  not  a  certain  penalty  to  be  imposed  for  the  car- 
riage of  a  proportion  of  contraband  less  than  that  required  to  entail  con- 
demnation ?  A  kind  of  fine  was  proposed  which  should  bear  a  relation  to 
the  value  of  the  contraband  articles.  Objections  of  various  sorts  were 
brought  forward  against  this  proposal,  although  the  principle  of  the  inflic- 
tion of  some  kind  of  pecuniary  loss  for  the  carriage  of  contraband  seemed 
justified.  The  same  object  was  attained  in  another  way  by  providing  that 
the  costs  and  expenses  incurred  by  the  captor  in  respect  of  the  proceedings 
in  the  national  prize-court  and  of  the  custody  of  the  vessel  and  of  her 
cargo  during  the  proceedings  are  to  be  paid  by  the  vessel.  The  expenses 
of  the  custody  of  the  vessel  include  in  this  case  the  keep  of  the  captured 
vessel's  crew.  It  should  be  added  that  the  loss  to  a  vessel  by  being  taken 
to  a  prize  port  and  kept  there  is  the  most  serious  deterrent  as  regards  the 
carriage  of  contraband. 

"'Art.  42.  Goods  which  belong  to  the  owner  of  the  contraband  and 
are  on  board  the  same  vessel  are  liable  to  condemnation.' 

"The  owner  of  the  contraband  is  punished  in  the  first  place  by  the  con- 
demnation of  his  contraband  property;  and  in  the  second  by  that  of  the 
goods,  even  if  innocent,  which  he  may  possess  on  board  the  same  vessel. 

"'Art.  43.  If  a  vessel  is  encountered  at  sea  while  unaware  of  the  out- 
break of  hostilities  or  of  the  declaration  of  contraband  which  applies  to 
her  cargo,  the  contraband  cannot  be  condemned  except  on  payment  of 
compensation;  the  vessel  herself  and  the  remainder  of  the  cargo  are  not 
liable  to  condemnation  or  to  the  costs  and  expenses  referred  to  in  article 
41.  The  same  rule  applies  if  the  master,  after  becoming  aware  of  the 
outbreak  of  hostilities,  or  of  the  declaration  of  contraband,  has  had  no 
opportunity  of  discharging  the  contraband. 

"*A  vessel  is  deemed  to  be  aware  of  the  existence  of  a  state  of  war,  or 
of  a  declaration  of  contraband,  if  she  left  a  neutral  port  subsequently  to 
the  notification  to  the  power  to  which  such  port  belongs  of  the  outbreak 
of  hostilities,  or  of  the  declaration  of  contraband,  provided  such  notifica- 
tion was  made  in  sufficient  time.  A  vessel  is  also  deemed  to  be  aware  of 
the  existence  of  a  state  of  war  if  she  left  an  enemy  port  after  the  outbreak 
of  hostilities.' 

"This  provision  is  intended  to  spare  neutrals  who  might  in  fact  be 


APPENDIX  IV  575 

carrying  contraband,  but  against  whom  no  charge  could  be  made.  This 
may  arise  in  two  cases:  The  first  is  that  in  which  they  are  unaware  of  the 
outbreak  of  hostilities;  the  second  is  that  in  which,  though  aware  of  this, 
they  do  not  know  of  the  declaration  of  contraband  made  by  a  belligerent, 
in  accordance  with  articles  23  and  25,  which  is,  as  it  happens,  the  one  ap- 
plicable to  the  whole  or  a  part  of  the  cargo.  It  would  be  unjust  to  capture 
the  ship  and  condemn  the  contraband;  on  the  other  hand,  the  cruiser 
cannot  be  obligated  to  let  go  on  to  the  enemy  goods  suitable  for  use  in 
the  war  of  which  he  may  stand  in  urgent  need.  These  opposing  interests 
are  reconciled  by  making  condemnation  conditional  on  the  payment  of 
compensation.  (See  the  convention  of  the  18th  October,  1907,  on  the  rules 
for  enemy  merchant  vessels  on  the  outbreak  of  hostilities,  which  expresses 
a  similar  idea.) 

'"Art.  44.  A  vessel  which  has  been  stopped  on  the  ground  that  she 
is  carrying  contraband,  and  which  is  not  liable  to  condemnation  on  account 
of  the  proportion  of  contraband  on  board,  may,  when  the  circumstances 
permit,  be  allowed  to  continue  her  voyage  if  the  master  is  willing  to  hand 
over  the  contraband  to  the  belligerent  war-ship. 

"'The  delivery  of  the  contraband  must  be  entered  by  the  captor  on  the 
log-book  of  the  vessel  stopped,  and  the  master  must  give  the  captor  duly 
certified  copies  of  all  relevant  papers. 

"  'The  captor  is  at  liberty  to  destroy  the  contraband  that  has  been  handed 
over  to  him  under  these  conditions.' 

"A  neutral  vessel  is  stopped  for  carrying  contraband.  She  is  not  liable 
to  condemnation,  because  the  contraband  does  not  reach  the  proportion 
specified  in  article  40.  She  can,  nevertheless,  be  taken  to  a  prize  port 
for  judgment  to  be  passed  on  the  contraband.  This  right  of  the  captor 
appears  too  wide  in  certain  cases,  if  the  importance  of  the  contraband, 
possibly  slight  (for  instance,  a  case  of  guns,  or  revolvers),  is  compared  with 
the  heavy  loss  incurred  by  the  vessel  by  being  thus  turned  out  of  her  course 
and  detained  during  the  time  taken  up  by  the  proceedings.  The  question 
has,  therefore,  been  asked  whether  the  right  of  the  neutral  vessel  to  con- 
tinue her  voyage  might  not  be  admitted  if  the  contraband  articles  were 
handed  over  to  the  captor,  who,  on  his  part,  might  only  refuse  to  receive 
them  for  sufficient  reasons,  for  instance,  the  rough  state  of  the  sea,  which 
would  make  transshipment  difficult  or  impossible,  well-founded  suspicions 
as  to  the  amount  of  contraband  which  the  merchant  vessel  is  really  carry- 
ing, the  difficulty  of  stowing  the  articles  on  board  the  war-ship,  etc.  This 
proposal  did  not  gain  sufficient  support.  It  was  alleged  to  be  impossible 
to  impose  such  an  obligation  on  the  cruiser,  for  which  this  handing  over 
of  goods  would  almost  always  have  drawbacks.  If,  by  chance,  it  has 
none,  the  cruiser  will  not  refuse  it  because  she  herself  will  gain  by  not 
being  turned  out  of  her  course  by  having  to  take  the  vessel  to  a  port. 
The  idea  of  an  obligation  having  thus  been  excluded,  it  was  decided  to 
provide  for  the  voluntary  liandiiig  over  the  contraband,  which,  it  is  hoped, 
will  be  carried  out  whenever  possible,  to  the  great  advantage  of  both 


576  APPENDIX  IV 

parties.  The  formalities  provided  for  are  very  simple  and  need  no  ex- 
planation. 

"There  must  be  a  judgment  of  a  prize-court  as  regards  the  goods  thus 
handed  over.  For  this  purpose  the  captor  must  be  furnished  with  the 
necessary  papers.  It  may  be  supposed  that  there  might  be  doubt  as  to 
the  character  of  certain  articles  which  cruiser  claims  as  contraband;  the 
master  of  the  merchant  vessel  contests  this  claim,  but  prefers  to  deliver 
them  up  so  as  to  be  at  liberty  to  continue  his  voyage.  This  is  merely  a 
capture  which  has  to  be  confirmed  by  the  prize-court. 

"The  contraband  delivered  up  by  the  merchant  vessel  may  hamper  the 
cruiser,  which  must  be  left  free  to  destroy  it  at  the  moment  of  handing 
over  or  later. 

Chapter  III — Unneutral  Service 

"In  a  general  way,  it  may  be  said  that  the  merchant  vessel  which  vio- 
lates neutrality,  whether  by  carrying  contraband  of  war  or  by  breaking 
blockade,  affords  aid  to  the  enemy,  and  it  is  on  this  ground  that  the  bellig- 
erent whom  she  injures  by  her  acts  is  justified  in  inflicting  on  her  certain 
losses.  But  there  are  cases  where  such  unneutral  service  bears  a  particu- 
larly distinctive  character,  and  for  such  cases  it  has  been  thought  necessary 
to  make  special  provision.  They  have  been  divided  into  two  classes 
according  to  the  gravity  of  the  act  of  which  the  neutral  vessel  is  accused. 

"In  the  cases  included  in  the  first  class  (art.  45),  the  vessel  is  condemned 
and  receives  the  treatment  of  a  vessel  subject  to  condemnation  for  carry- 
ing contraband.  This  means  that  the  vessel  does  not  lose  her  neutral 
character  and  has  a  full  claim  to  the  rights  enjoyed  by  neutral  vessels; 
for  instance,  she  may  not  be  destroyed  by  the  captor  except  under  the 
conditions  laid  down  for  neutral  vessels  (arts.  48  et  seq.);  the  rule  that  the 
flag  covers  the  goods  applies  to  goods  she  carries  on  board. 

"In  the  more  serious  cases  which  belong  to  the  second  class  (art.  46), 
the  vessel  is  again  condemned;  but  further,  she  is  treated  not  only  as  a 
vessel  subject  to  condemnation  for  carrying  contraband,  but  as  an  enemy 
merchant  vessel,  which  treatment  entails  certain  consequences.  The  rules 
governing  the  destruction  of  neutral  prizes  do  not  apply  to  the  vessel,  and 
as  she  has  become  an  enemy  vessel,  it  is  no  longer  the  second  but  the  third 
rule  of  the  declaration  of  Pans  which  is  applicable.  The  goods  on  board 
will  be  presumed  to  be  enemy  goods;  neutrals  will  have  the  right  to  claim 
their  property  on  establishing  their  neutrality.  (Art.  59.)  It  would,  how- 
ever, be  going  too  far  to  say  that  the  original  neutral  character  of  the  vessel 
is  completely  lost,  so  that  she  should  be  treated  as  though  she  had  always 
been  an  enemy  vessel.  The  vessel  may  plead  that  the  allegation  made 
against  her  has  no  foundation  in  fact,  that  the  act  of  which  she  is  accused 
has  not  the  character  of  unneutral  service.  She  has,  therefore,  the  right 
of  appeal  to  the  international  court  in  virtue  of  the  provisions  which  pro- 
tect neutral  property. 

"'Art.  45,    A  neutral  vessel  will  be  condemned  and  will,  in  a  general 


APPENDIX  IV  577 

way.  receive  the  same  treatment  as  a  neutral  vessel  liable  to  condemnation 
for  carriage  of  contraband: 

" '  (1)  If  she  is  on  a  voyage  specially  undertaken  with  a  view  to  the  trans- 
port of  individual  passengers  who  are  embodied  in  the  armed  forces  of 
the  enemy  or  with  a  view  to  the  transmission  of  intelligence  in  the  interest 
of  the  enemy. 

'"(2)  If,  to  the  knowledge  of  either  the  owner,  the  charterer,  or  the 
master,  she  is  transporting  a  military  detachment  of  the  enemy  or  one  or 
more  persons  who,  in  the  course  of  the  voyage,  directly  assist  the  operations 
of  the  enemy. 

'"In  the  cases  specified  under  the  above  heads,  goods  belonging  to  the 
owner  of  the  vessel  are  likewise  liable  to  condemnation. 

'"The  provisions  of  the  present  article  do  not  apply  if  the  vessel  is  en- 
countered at  sea  while  unaware  of  the  outbreak  of  hostilities  or  if  the  master, 
after  becoming  aware  of  the  outbreak  of  hostilities,  has  had  no  opportunity 
of  disembarking  the  passengers.  The  vessel  is  deemed  to  be  aware  of  the 
existence  of  a  state  of  war  if  she  left  an  enemy  port  subsequently  to  the 
outbreak  of  hostilities  or  a  neutral  port  subsequently  to  the  notification 
of  the  outbreak  of  hostilities  to  the  power  to  which  such  port  belongs, 
provided  that  such  notification  was  made  in  sufficient  time.' 

"The  first  case  supposes  passengers  travelling  as  individuals;  the  case 
of  a  military  detachment  is  dealt  with  hereafter.  The  case  is  that  of  in- 
dividuals embodied  in  the  armed  military  or  naval  forces  of  the  enemy. 
There  was  some  doubt  as  to  the  meaning  of  this  word.  Does  it  include 
those  individuals  only  who  are  summoned  to  serve  in  virtue  of  the  law  of 
their  country  and  who  have  really  joined  the  corps  to  which  they  are  to 
belong?  Or  does  it  also  include  such  individuals  from  the  moment  when 
they  are  summoned  and  before  they  join  that  corps?  The  question  is  of 
great  practical  importance.  Supposing  the  case  is  one  of  individuals  who 
are  natives  of  a  continental  European  country  and  are  settled  in  America; 
these  individuals  have  military  obligations  toward  their  country  of  origin; 
they  have,  for  instance,  to  belong  to  the  reserve  of  the  active  army  of  that 
country.  Their  country  is  at  war  and  they  sail  to  perform  their  service. 
Shall  they  be  considered  as  embodied  in  the  sense  of  the  provision  which 
we  are  discussing  ?  If  we  judged  by  the  municipal  law  of  certain  countries 
we  might  argue  that  they  should  be  so  considered.  But,  apart  from  reasons 
of  pure  law,  the  contrary  opinion  has  seemed  more  in  accordance  with 
practical  necessity  and  has  been  accepted  by  all  in  a  spirit  of  conciliation. 
It  would  be  difficult,  perhaps  even  impossible,  without  having  recourse  to 
vexatious  measures  to  which  neutral  governments  would  not  unwilHngly 
submit,  to  pick  out  among  tlie  passengers  in  a  vessel  those  who  are  bound 
to  perform  military  service  and  are  on  their  way  to  do  so. 

"The  transmission  of  intelligence  in  the  interest  of  the  enemy  is  to  be 
treated  in  the  same  way  as  the  carriage  of  passengers  etnl)Oflied  in  his  armed 
force.  The  reference  to  a  vessel  especially  undertaking  a  voyage  is  in- 
tended to  show  that  her  usual  service  is  not  meant.    She  has  been  turned 


578  APPENDIX  IV 

from  her  course;  she  has  touched  at  a  port  which  she  does  not  ordinarily 
visit  in  order  to  embark  the  passengers  in  question.  She  need  not  be  ex- 
clusively devoted  to  the  service  of  the  enemy;  that  case  would  come  into 
the  second  class.     (Art.  56  (4).) 

"In  the  two  cases  just  mentioned  the  vessel  has  performed  but  a  single 
service;  she  has  been  employed  to  carry  certain  people  or  to  transmit 
certain  intelligence;  she  is  not  continuously  in  the  service  of  the  enemy. 
In  consequence,  she  may  be  captured  during  the  voyage  on  which  she  is 
performing  the  service  which  she  has  to  render.  Once  that  voyage  is 
finished,  all  is  over,  in  the  sense  that  she  may  not  be  captured  for  having 
rendered  the  service  in  question.  The  principle  is  the  same  as  that  recog- 
nized in  the  case  of  contraband.     (Art.  38.) 

"The  second  case  also  falls  under  two  heads. 

"There  is,  first,  the  carriage  of  a  military  detachment  of  the  enemy,  or 
that  of  one  or  more  persons  who  during  the  voyage  directly  assist  his  opera- 
tions, for  instance,  by  signalling.  If  these  people  are  soldiers  or  sailors 
in  uniform  there  is  no  difficulty,  the  vessel  is  clearly  liable  for  condemnation. 
If  they  are  soldiers  or  sailors  in  mufti,  who  might  be  mistaken  for  ordinary 
passengers,  knowledge  on  the  part  of  the  master  or  owner  is  required,  the 
charterer  being  assimilated  to  the  latter.  The  rule  is  the  same  in  the  case 
of  persons  directly  assisting  the  enemy  during  the  voyage. 

"In  these  cases,  if  the  vessel  is  condemned  for  unneutral  service,  the 
goods  belonging  to  her  owner  are  also  liable  to  condemnation. 

"These  provisions  assume  that  the  state  of  war  was  known  to  the  vessel 
engaged  in  the  operations  specified;  such  knowledge  is  the  reason  and 
justification  of  her  condemnation.  The  position  is  altogether  different 
when  the  vessel  is  unaware  of  the  outbreak  of  hostilities,  so  that  she  under- 
takes the  service  in  ordinary  circumstances.  She  may  have  learned  of 
the  outbreak  of  hostilities  while  at  sea  but  have  had  no  chance  of  landing 
the  persons  whom  she  was  carrying.  Condemnation  would  then  be  un- 
just, and  the  equitable  rule  adopted  is  in  accordance  with  the  provisions 
already  accepted  in  other  matters.  If  a  vessel  has  left  an  enemy  port 
subsequently  to  the  outbreak  of  hostihties,  or  a  neutral  port  after  that 
outbreak  has  been  notified  to  the  power  to  whom  such  port  belongs,  her 
knowledge  of  the  existence  of  a  state  of  war  will  be  presumed. 

"The  question  here  is  merely  one  of  preventing  the  condemnation  of  the 
vessel.  The  persons  found  on  board  her  who  belong  to  the  armed  forces 
of  the  enemy  may  be  made  prisoners  of  war  by  the  cruiser. 

"'Art.  46.  A  neutral  vessel  is  liable  to  condemnation  and,  in  a  general 
way,  to  the  same  treatment  as  would  be  applicable  to  her  if  she  were  an 
enemy  merchant  vessel: 

"'(1)  If  she  takes  a  direct  part  in  the  hostilities; 

"'(2)  If  she  is  under  the  orders  or  control  of  an  agent  placed  on  board 
by  the  enemy  government; 

"'(3)  If  she  is  in  the  exclusive  employment  of  the  enemy  government; 

" '  (4)  If  she  is  exclusively  engaged  at  the  time  either  in  the  transport 


APPENDIX  IV  579 

of  enemy  troops  or  in  the  transmission  of  intelligence  in  the  interest  of  the 
enemy. 

'"In  the  cases  covered  by  the  present  article,  goods  belonging  to  the 
owner  of  the  vessel  are  likewise  liable  to  condemnation.' 

"The  cases  here  contemplated  are  more  serious  than  those  in  article 
45,  which  justifies  the  severer  treatment  inflicted  on  the  vessel  as  explained 
above. 

"First  Case. — The  vessel  takes  a  direct  part  in  the  hostilities.  This 
may  take  different  forms.  It  is  needless  to  say  that,  in  an  armed  conflict, 
the  vessel  takes  all  the  risks  incidental  thereto.  We  suppose  her  to  have 
fallen  into  the  power  of  the  enemy  whom  she  was  fighting,  and  who  is  en- 
titled to  treat  her  as  an  enemy  merchant  vessel. 

"Second  Case. — The  vessel  is  under  the  orders  or  control  of  an  agent 
placed  on  board  by  the  enemy  government.  His  presence  marks  the  re- 
lation in  which  she  stands  to  the  enemy.  In  other  circumstances  the 
vessel  may  also  have  relations  with  the  enemy,  but  to  be  subject  to  con- 
demnation she  must  come  under  the  third  head. 

"  Third  Case. — The  whole  vessel  is  chartered  by  the  enemy  government, 
and  is  therefore  entirely  at  its  disposal;  it  can  use  her  for  different  pur- 
poses more  or  less  directly  connected  with  the  war,  notably,  as  a  transport; 
such  is  the  position  of  colliers  which  accompany  a  belligerent  fleet.  There 
will  often  be  a  charter  party  between  the  belligerent  government  and  the 
owner  or  master  of  the  vessel,  but  all  that  is  required  is  proof,  and  the 
fact  that  the  whole  vessel  has,  in  fact,  been  chartered  is  enough,  in  what- 
ever way  it  may  be  established. 

"Fourth  Case. — The  vessel  is  at  the  time  exclusively  devoted  to  the 
carriage  of  enemy  troops  or  to  the  transmission  of  intelligence  in  the  enemy's 
interest.  The  case  is  different  from  those  dealt  with  by  article  45,  and 
the  question  is  one  of  a  service  to  which  the  ship  is  permanently  devoted. 
The  decision  accordingly  is  that,  so  long  as  such  service  lasts,  the  vessel 
is  liable  to  capture,  even  if,  at  the  moment  when  an  enemy  cruiser  searches 
her,  she  is  engaged  neither  in  the  transport  of  troops  nor  in  the  transmission 
of  intelligence. 

"As  in  the  cases  in  article  45,  and  for  the  same  reasons,  goods  found  on 
board  belonging  to  the  owner  of  the  vessel  are  also  liable  to  condemnation. 

"It  was  proposed  to  treat  as  an  enemy  merchant  vessel  a  neutral  vessel 
making,  at  the  time,  and  with  the  sanction  of  the  enemy  government,  a 
voyage  which  she  has  only  been  permitted  to  make  subsequently  to  the 
outbreak  of  hostilities  or  during  the  two  preceding  months.  This  rule 
would  be  enforced  notably  on  neutral  merchant  vessels  admitted  by  a 
belligerent  to  a  service  reserved  in  time  of  peace  to  tlie  national  marine  of 
that  bflligerent — for  instance,  to  the  coasting  trade.  Several  delegations 
formally  rejected  this  proposal,  so  that  the  question  thus  raised  remains 
an  open  one. 

"'Art.  47.  Any  individual  embodied  in  the  armed  forces  of  the  enemy 
who  is  found  on  hoard  a  neutral  merchant  vessel  may  be  made  a  prisoner 
of  war,  even  though  there  be  no  ground  for  the  capture  of  the  ves.sel.' 


580  APPENDIX  IV 

"Individuals  embodied  in  the  armed  military  or  naval  forces  of  a  bellig- 
erent may  be  on  board  a  neutral  merchant  vessel  vi^hen  she  is  searched. 
If  the  vessel  is  subject  to  condemnation,  the  cruiser  will  capture  her  and 
take  her  to  one  of  her  own  ports  with  the  persons  on  board.  Clearly  the 
soldiers  or  sailors  of  the  enemy  state  will  not  be  set  free  but  will  be  treated 
as  prisoners  of  war.  Perhaps  the  case  will  not  be  one  for  the  capture  of 
the  ship — for  instance,  because  the  master  was  unaware  of  the  status  of  an 
individual  who  had  come  on  board  as  an  ordinary  passenger.  Must  the 
soldier  or  soldiers  on  board  the  vessel  be  set  free  ?  That  does  not  appear 
admissible.  The  belligerent  cruiser  cannot  be  compelled  to  set  free  active 
enemies  who  are  physically  in  her  power  and  are  more  dangerous  than  this 
or  that  contraband  article.  She  must  naturally  proceed  with  great  dis- 
cretion and  must  act  on  her  own  responsibility  in  requiring  the  surrender 
of  these  individuals,  but  the  right  to  do  so  is  hers;  it  has  therefore  been 
thought  necessary  to  explain  the  point. 

Chapter  IV — Destruction  of  Neutral  Prizes 

"The  destruction  of  neutral  prizes  was  a  subject  comprised  in  the  pro- 
gramme of  the  second  peace  conference,  and  on  that  occasion  no  settle- 
ment was  reached.  It  reappeared  in  the  programme  of  the  present  con- 
ference, and  this  time  agreement  has  been  found  possible.  Such  a  result, 
which  bears  witness  to  the  sincere  desire  of  all  parties  to  arrive  at  an  under- 
standing, is  a  matter  for  congratulation.  It  has  been  shown  once  more 
that  conflicting  hard-and-fast  rules  do  not  always  correspond  to  things 
as  they  are,  and  that  if  there  be  readiness  to  descend  to  particulars  and 
to  arrive  at  the  precise  way  in  which  the  rules  have  been  applied,  it  will 
often  be  found  that  the  actual  practice  is  very  much  the  same,  although 
the  doctrines  professed  appear  to  be  entirely  in  conflict.  To  enable  two 
parties  to  agree,  it  is  first  of  all  necessary  that  they  should  understand 
each  other,  and  this  frequently  is  not  the  case.  Thus  it  has  been  found 
that  those  who  declared  for  the  right  to  destroy  neutral  prizes  never 
claimed  to  use  this  right  wantonly  or  at  every  opportunity  but  only  by  way 
of  exception;  while,  on  the  other  hand,  those  who  maintained  the  principle 
that  destruction  is  forbidden  admitted  that  the  principle  must  give  way  in 
certain  exceptional  cases.  It  therefore  became  a  question  of  reaching  an 
understanding  with  regard  to  those  exceptional  cases  to  which,  according  to 
both  views,  the  right  to  destroy  should  be  confined.  But  this  was  not  all; 
there  was  need  for  some  guarantee  against  abuse  in  the  exercise  of  this 
right;  the  possibility  of  arbitrary  action  in  determining  these  exceptional 
cases  must  be  limited  by  throwing  some  real  responsibility  upon  the  cap)- 
tor.  It  was  at  this  stage  that  a  new  idea  was  introduced  into  the  discus- 
sion, thanks  to  which  it  was  possible  to  arrive  at  an  agreement.  The 
possibility  of  intervention  by  a  court  of  justice  will  make  the  captor  reflect 
before  he  acts  and,  at  the  same  time,  secure  reparation  in  cases  where  there 
was  no  reason  for  the  destruction. 

"Such  is  the  general  spirit  of  the  provisions  of  this  chapter. 

"'Art.  48.     A  neutral  vessel  which  has  been  captured  may  not  be  de- 


APPENDIX  IV  581 

stroyed  by  the  captor;  she  must  be  taken  into  such  port  as  is  proper  for 
the  determination  there  of  all  questions  concerning  the  validity  of  the 
prize.' 

"The  general  principle  is  very  simple.  A  neutral  vessel  which  has  been 
seized  may  not  be  destroyed  by  the  captor;  so  much  may  be  admitted  by 
every  one,  whatever  view  is  taken  as  to  the  effect  pro<luced  by  the  capture. 
The  vessel  must  be  taken  into  a  port  for  the  determination  there  as  to  the 
validity  of  the  prize.  A  prize-crew  will  be  put  on  board  or  not,  according 
to  circumstances. 

"'Art.  49.  As  an  exception,  a  neutral  vessel  which  has  been  captured 
by  a  belligerent  war-ship,  and  which  would  be  liable  to  condemnation,  may 
be  destroyed  if  the  observance  of  article  48  would  involve  danger  to  the 
safety  of  the  war-ship  or  to  the  success  of  the  operations  in  which  she  is 
engaged  at  the  time.' 

"The  first  condition  necessary  to  justify  the  destruction  of  the  cap- 
tured vessel  is  that  she  should  be  liable  to  condemnation  upon  the  facts 
of  the  case.  If  the  captor  cannot  even  hope  to  obtain  the  condemnation 
of  the  vessel,  how  can  he  lay  claim  to  the  right  to  destroy  her? 

"The  second  condition  is  that  the  observance  of  the  general  principle 
would  involve  danger  to  the  safety  of  the  war-ship  or  to  the  success  of 
the  operations  in  which  she  is  engaged  at  the  time.  This  is  what  was 
finally  agreed  upon  after  various  solutions  had  been  tried.  It  was  under- 
stood that  the  phrase  compromettre  la  securite  was  synonymous  with 
mettre  en  danger  le  navire  and  might  be  translated  into  English  by: 
Involve  danger.  It  is,  of  course,  the  situation  at  the  moment  when  the 
destruction  takes  place  which  must  be  considered  in  order  to  decide 
whether  the  conditions  are  or  are  not  fulfilled.  For  a  danger  which  did 
not  exist  at  the  actual  moment  of  the  capture  may  have  appeared  some 
time  afterward. 

"'Art.  50.  Before  the  vessel  is  destroyed  all  persons  on  board  must 
be  placed  in  safety,  and  all  the  ship's  papers  and  other  documents  which 
the  parties  interested  consider  relevant  for  the  purpose  of  deciding  on  the 
validity  of  the  capture  must  be  taken  on  board  the  war-ship.' 

"This  provision  lays  down  the  precautions  to  be  taken  in  the  interests 
of  the  persons  on  board  and  of  the  administration  of  justice. 

"'Art.  51.  A  captor  who  has  destroyed  a  neutral  vessel  must,  prior 
to  any  decision  respecting  the  validity  of  the  prize,  establish  that  he  only 
acted  in  the  face  of  an  exceptional  necessity,  of  the  nature  contemplated 
in  article  49.  If  he  fails  to  do  this,  he  must  compensate  the  parties  in- 
terested, and  no  examination  shall  be  made  of  the  question  whether  the 
capture  was  valid  or  not.' 

"Thi.s  claim  gives  a  guarantee  against  the  arbitrary  destruction  of  prizes 
by  throwing  a  real  responsibility  upon  the  captor  who  has  carried  out  the 
destructi<m.  The  result  is  that  before  any  decision  is  given  respecting 
the  validity  of  the  prize,  the  captor  must  prove  that  the  situation  he  was 
in  was  really  one  which  fell  under  the  head  of  the  e.xceptional  cases  con- 


582  APPENDIX  IV 

templated.  This  must  be  proved  in  proceedings  to  which  the  neutral  is  a 
party,  and  if  the  latter  is  not  satisfied  with  the  decision  of  the  national 
prize-court  he  may  take  his  case  to  the  international  court.  Proof  to  the 
above  effect  is,  therefore,  a  condition  precedent  which  the  captor  must 
fulfil.  If  he  fails  to  do  this,  he  must  compensate  the  parties  interested  in 
the  vessel  and  the  cargo,  and  the  question  whether  the  capture  was  valid 
or  not  will  not  be  gone  into.  In  this  way  a  real  sanction  is  provided  in 
respect  of  the  obligation  not  to  destroy  a  prize  except  in  particular  cases, 
the  sanction  taking  the  form  of  a  fine  inflicted  on  the  captor.  If,  on  the 
other  hand,  this  proof  is  given,  the  prize  procedure  follows  the  usual  course; 
if  the  prize  is  declared  valid,  no  compensation  is  due;  if  it  is  declared 
void,  the  parties  interested  have  a  right  to  be  compensated.  Resort  to 
the  international  court  can  only  be  made  after  the  decision  of  the  prize- 
court  has  been  given  on  the  whole  matter  and  not  immediately  after  the 
preliminary  question  has  been  decided. 

"'Art.  52.  If  the  capture  of  a  neutral  vessel  is  subsequently  held  to 
be  invalid,  though  the  act  of  destruction  has  been  held  to  have  been  justi- 
fiable, the  captor  must  pay  compensation  to  the  parties  interested,  in  place 
of  the  restitution  to  which  they  would  have  been  entitled. 

'"Art.  53.  If  neutral  goods  not  liable  to  condemnation  have  been 
destroyed  with  the  vessel,  the  owner  of  such  goods  is  entitled  to  com- 
pensation.' 

"Supposing  a  vessel  which  has  been  destroyed  carried  neutral  goods 
not  liable  to  condemnation:  the  owner  of  such  goods  has,  in  every  case, 
a  right  to  compensation;  that  is,  without  there  being  occasion  to  dis- 
tinguish between  cases  where  the  destruction  was  or  was  not  justified. 
This  is  equitable  and  a  further  guarantee  against  arbitrary  destruction. 

"'Art.  54.  The  captor  has  the  right  to  demand  the  handing  over  or 
to  proceed  himself  to  the  destruction  of  any  goods  liable  to  condemnation 
found  on  board  a  vessel  not  herself  liable  to  condemnation,  provided  that 
the  circumstances  are  such  as  would,  under  article  49,  justify  the  destruc- 
tion of  a  vessel  herself  hable  to  condemnation.  The  captor  must  enter 
the  goods  surrendered  or  destroyed  in  the  log-book  of  the  vessel  stopped 
and  must  obtain  duly  certified  copies  of  all  relevant  papers.  When  the 
goods  have  been  handed  over  or  destroyed  and  the  formalities  duly  carried 
out,  the  master  must  be  allowed  to  continue  his  voyage. 

"'The  provisions  of  articles  51  and  52  respecting  the  obligations  of  a 
captor  who  has  destroyed  a  neutral  vessel  are  applicable.' 

"A  cruiser  encounters  a  neutral  merchant  vessel  carrying  contraband  in 
a  proportion  less  than  that  specified  in  article  40.  The  captain  may  put  a 
prize-crew  on  board  the  vessel  and  take  her  into  a  port  for  adjudication. 
He  may,  in  conformity  with  the  provisions  of  article  44,  agree  to  the  hand- 
ing over  of  the  contraband  if  offered  by  the  vessel  stopped.  But  what  is 
to  happen  if  neither  of  these  solutions  is  reached?  The  vessel  stopped 
does  not  offer  to  hand  over  the  contraband  and  the  cruiser  is  not  in  a 
position  to  take  the  vessel  into  a  national  port.     Is  the  cruiser  obliged  to 


APPENDIX  IV  583 

let  the  neutral  vessel  go  with  the  contraband  on  board  ?  To  require  this 
seemed  going  too  far,  at  least  in  certain  exceptional  circumstances.  These 
circumstances  are,  in  fact,  the  sa^e  as  would  have  justified  the  destruction 
of  the  vessel,  had  she  been  liable  to  condemnation.  In  such  a  case,  the 
cruiser  may  demand  the  handing  over  or  proceed  to  the  destruction  of 
the  goods  liable  to  condemnation.  The  reasons  for  which  the  right  to 
destroy  the  vessel  has  been  recognized  may  justify  the  destruction  of  the 
contraband  goods,  the  more  so  as  the  considerations  of  humanity  which 
can  be  adduced  against  the  destruction  of  a  vessel  do  not  in  this  case  apply. 
Against  arbitrary  demands  by  the  cruiser  there  are  the  same  guarantees 
as  those  which  made  it  possible  to  recognize  the  right  to  destroy  the  vessel. 
The  captor  must,  as  a  preliminary,  prove  that  he  was  really  faced  by  the 
exceptional  circumstances  specified;  failing  this,  he  is  condemned  to  pay 
the  value  of  the  goods  handed  over  or  destroyed,  and  the  question  whether 
they  were  contraband  or  not  will  not  be  gone  into. 

"The  article  prescribes  certain  formalities  which  are  necessary  to  es- 
tablish the  facts  of  the  case  and  to  enable  the  prize-court  to  adjudicate. 

"Of  course,  when  once  the  goods  have  been  handed  over  or  destroyed 
and  the  formalities  carried  out,  the  vessel  which  has  been  stopped  must 
be  left  free  to  continue  her  voyage. 

Chapter  V — ^Transfer  to  a  Neutral  Flag 

"An  enemy  merchant  vessel  is  liable  to  capture,  whereas  a  neutral 
merchant  vessel  is  immune.  It  can  therefore  be  readily  understood  that 
a  belligerent  cruiser  encountering  a  merchant  vessel  which  lays  claim  to 
neutral  nationality  has  to  inquire  whether  such  nationality  has  been  ac- 
quired legitimately  or  merely  in  order  to  shield  the  vessel  from  the  risks 
to  which  she  would  have  been  exposed  had  she  retained  her  former  nation- 
ality. This  question  naturally  arises  when  the  transfer  has  taken  place 
a  comparatively  short  time  before  the  moment  at  which  the  ship  is  searched, 
whether  the  actual  date  be  before  or  after  the  outbreak  of  hostilities.  The 
answer  will  be  different  according  as  the  question  is  looked  at  from  the 
point  of  view  of  commercial  or  belligerent  interests.  Fortunately,  rules 
have  been  agreed  upon  which  conciliate  both  these  interests  as  far  as  pos- 
sible and  which,  at  the  same  time,  tell  belligerents  and  neutral  commerce 
what  their  position  is. 

"'Art.  55.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected 
before  the  outbreak  of  hostilities,  is  valid,  unless  it  is  proved  that  such 
transfer  was  made  in  order  to  evade  the  consequences  to  which  an  enemy 
vessel,  as  such,  is  exposed.  There  is,  however,  a  presumption,  if  the  bill 
of  sale  is  not  on  board  a  vessel  which  has  lost  her  belligerent  nationality 
less  than  sixty  days  before  the  outbreak  of  hostilities,  that  the  transfer 
is  void.     This  presumption  may  be  rebutted. 

"'Where  the  transfer  was  effectofl  more  than  thirty  days  before  the 
outbreak  of  hostilities,  there  is  an  absolute  presumjjtion  that  it  is  valid 
if  it  is  unconditional,  complete,  and  in  conformity  with  the  laws  of  the 


584  APPENDIX  IV 

countries  concerned,  and  if  its  effect  is  such  that  neither  the  control  of, 
nor  the  profits  earned  by,  the  vessel  remain  in  the  same  hands  as  before 
the  transfer.  If,  however,  the  vessel  lost  her  belligerent  nationality  less 
than  sixty  days  before  the  outbreak  of  hostilities,  and  if  the  bill  of  sale  is 
not  on  board,  the  capture  of  the  vessel  gives  no  right  to  damages.' 

"The  general  rule  laid  down  in  the  first  paragraph  is  that  the  transfer 
of  an  enemy  vessel  to  a  neutral  flag  is  valid,  assuming,  of  course,  that  the 
ordinary  requirements  of  the  law  have  been  fulfilled.  It  is  upon  the  cap- 
tor, if  he  wishes  to  have  the  transfer  annulled,  that  the  onus  lies  of  prov- 
ing that  its  object  was  to  evade  the  consequences  entailed  by  the  war  in 
prospect.  There  is  one  case  which  is  treated  as  suspicious,  that,  namely, 
in  which  the  bill  of  sale  is  not  on  board  when  the  ship  has  changed  her 
nationality  less  than  sixty  days  before  the  outbreak  of  hostilities.  The 
presumption  of  validity  which  has  been  set  up  by  the  first  paragraph  in 
favor  of  the  vessel  is  then  replaced  by  a  presumption  in  favor  of  the  captor. 
It  is  presumed  that  the  transfer  is  void,  but  the  presumption  may  be  re- 
butted. With  a  view  to  such  rebuttal,  proof  may  be  given  that  the  trans- 
fer was  not  effected  in  order  to  evade  the  consequences  of  the  war;  it  is 
unnecessary  to  add  that  the  ordinary  requirements  of  the  law  must  have 
been  fulfilled. 

"It  was  thought  desirable  to  give  to  commerce  a  guarantee  that  the 
right  of  treating  a  transfer  as  void  on  the  ground  that  it  was  effected  in 
order  to  evade  the  consequences  of  war  should  not  extend  too  far,  and 
should  not  cover  too  long  a  period.  Consequently,  if  the  transfer  has  been 
effected  more  than  thirty  days  before  the  outbreak  of  hostilities,  it  cannot 
be  impeached  on  that  ground  alone,  and  it  is  regarded  as  unquestionably 
valid  if  it  has  been  made  under  conditions  which  show  that  it  is  genuine 
and  final.  These  conditions  are  as  follows:  The  transfer  must  be  uncon- 
ditional, complete,  and  in  conformity  with  the  laws  of  the  countries  con- 
cerned, and  its  effect  must  be  such  that  both  the  control  of,  and  the  profits 
earned  by,  the  vessel  pass  into  other  hands.  When  once  these  conditions 
are  proved  to  exist,  the  captor  is  not  allowed  to  set  up  the  contention  that 
the  vender  foresaw  the  war  in  which  his  country  was  about  to  be  involved 
and  wished  by  the  sale  to  shield  himself  from  the  risks  to  which  a  state  of 
war  would  have  exposed  him  in  respect  of  the  vessels  he  was  transferring. 
Even  in  this  case,  however,  when  a  vessel  is  encountered  by  a  cruiser  and 
her  bill  of  sale  is  not  on  board,  she  may  be  captured  if  a  change  of  nation- 
ality has  taken  place  less  than  sixty  days  before  the  outbreak  of  hostilities; 
that  circumstance  has  made  her  suspect.  But  if  before  the  prize-court 
the  proof  required  by  the  second  paragraph  is  adduced,  she  must  be  re- 
leased, though  she  cannot  claim  compensation,  inasmuch  as  there  was 
good  reason  for  capturing  her. 

'"Art.  56.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag  effected 
after  the  outbreak  of  hostilities  is  void  unless  it  is  proved  that  such  trans- 
fer was  not  made  in  order  to  evade  the  consequences  to  which  a^i  '^nemy 
vessel,  as  such,  is  exposed, 


APPENDIX  IV  585 

"'Provided  that  there  is  an  absolute  presumption  that  a  transfer  is 
void: 

'"(1)  If  the  transfer  has  been  made  during  a  voyage  or  in  a  blockaded 
port; 

'"(2)  If  a  right  to  repurchase  or  recover  the  vessel  is  reserved  to  the 
vender; 

'"(3)  If  the  requirements  of  the  municipal  law  governing  the  right  to 
fly  the  flag  under  which  the  vessel  is  sailing  have  not  been  fulfilled.' 

"The  rule  respecting  transfers  made  after  the  outbreak  of  hostilities  is 
more  simple.  Such  a  transfer  is  only  valid  if  it  is  proved  that  its  object 
was  not  to  evade  the  consequences  to  which  an  enemy  vessel,  as  such,  is 
exposed.  The  rule  accepted  in  respect  to  transfers  made  before  the  out- 
break of  hostilities  is  inverted.  In  that  case  there  is  a  presumption  that 
the  transfer  is  valid;  in  the  present,  that  it  is  void — provided  always  that 
proof  to  the  contrary  may  be  given.  For  instance,  it  might  be  proved 
that  the  transfer  had  taken  place  by  inheritance. 

"Article  56  recites  cases  in  which  the  presumption  that  the  transfer  is 
void  is  absolute,  for  reasons  which  can  be  readily  understood.  In  the 
first  case  the  connection  between  the  transfer  and  the  war  risk  run  by  the 
vessel  is  evident.  In  the  second,  the  transferee  is  a  mere  man  of  straw, 
who  is  to  be  treated  as  owner  during  a  dangerous  period,  after  Avhicli  the 
vender  will  recover  possession  of  his  vessel.  Lastly,  the  third  case  might 
strictly  be  regarded  as  already  provided  for,  since  a  vessel  which  lays 
claim  to  neutral  nationality  must  naturally  prove  that  she  has  a  right  to  it. 

"At  one  time  provision  was  made  in  this  article  for  the  case  of  a  vessel 
which  was  retained,  after  the  transfer,  in  the  trade  in  which  she  had  pre- 
viously been  engaged.  Such  a  circumstance  is  in  the  highest  degree  sus- 
picious; the  transfer  has  a  fictitious  appearance,  inasmuch  as  nothing  has 
changed  in  regard  to  the  vessel's  trade.  This  would  apply,  for  instance, 
if  a  vessel  were  running  on  the  same  line  before  and  after  the  transfer.  It 
was,  however,  objected  that  to  set  up  an  absolute  presumption  would 
sometimes  be  too  severe  and  that  certain  kinds  of  vessels,  as,  for  example, 
tank-ships,  could,  on  account  of  their  build,  engage  only  in  a  certain  defi- 
nite trade.  To  meet  this  objection  the  word  "route"  was  then  added,  so 
that  it  would  have  been  necessary  that  the  vessel  should  be  engaged  in 
the  same  trade  and  on  the  same  route;  it  was  thought  that  in  this  way  the 
above  contention  would  have  been  satisfactorily  met.  However,  the  sup- 
pression of  this  case  from  the  list  being  insisted  on,  it  was  agreed  to  elimi- 
nate It.  Consequently,  a  transfer  of  this  character  now  falls  within  the 
general  rule;  it  is  certainly  presumed  to  be  void,  but  the  presumption 
may  be  rebutted. 

Chapter  VI — Enemy  Character 

"The  rule  in  the  declaration  of  Paris  that  'the  neutral  flag  covers 
enemy  goods,  with  the  exception  of  contraband  of  war'  corresponds  so 
closely  with  the  advance  of  civilization  and  has  taken  so  firm  a  hold  on 


586  APPENDIX  IV 

the  public  mind  that  it  is  impossible,  in  the  face  of  so  extensive  an  applica- 
tion, to  avoid  seeing  in  that  rule  the  embodiment  of  a  principle  of  the 
common  law  of  nations  which  can  no  longer  be  disputed.  The  determina- 
tion of  the  neutral  or  enemy  character  of  merchant  vessels  accordingly 
decides  not  only  the  question  of  the  validity  of  their  capture  but  also  the 
fate  of  the  non-contraband  goods  on  board.  A  similar  general  observation 
may  be  made  with  reference  to  the  neutral  or  enemy  character  of  goods. 
No  one  thinks  of  contesting  to-day  the  principle  according  to  which  'neu- 
tral goods,  with  the  exception  of  contraband  of  war,  are  not  liable  to  cap- 
ture on  board  an  enemy  ship.'  It  is,  therefore,  only  in  respect  of  goods 
found  on  board  an  enemy  ship  that  the  question  whether  they  are  neutral 
or  enemy  property  arises. 

"The  determination  of  what  constitutes  neutral  or  enemy  character 
thus  appears  as  a  development  of  the  two  principles  laid  down  in  1856,  or 
rather  as  a  means  of  securing  their  just  application  in  practice. 

"The  advantage  of  deducing  from  the  practices  of  different  countries 
some  clear  and  simple  rules  on  this  subject  may  be  said  to  need  no  demon- 
stration. The  uncertainty  as  to  the  risk  of  capture,  if  it  does  not  put  an 
end  to  trade,  is  at  least  the  most  serious  of  hinderances  to  its  continuance. 
A  trader  ought  to  know  the  risks  which  he  runs  in  putting  his  goods  on 
board  this  or  that  ship,  while  the  underwriter,  if  he  does  not  know  the 
extent  of  those  risks,  is  obliged  to  charge  war  premiums,  which  are  often 
either  excessive  or  else  inadequate. 

"The  rules  which  form  this  chapter  are,  unfortunately,  incomplete. 
Certain  important  points  had  to  be  laid  aside,  as  has  been  already  observed 
in  the  introductory  explanations  and  as  will  be  further  explained  below. 

"'Art.  57.  Subject  to  the  provisions  respecting  transfer  to  another 
Hag,  the  neutral  or  enemy  character  of  a  vessel  is  determined  by  the  flag 
which  she  is  entitled  to  fly. 

"'The  case  where  a  neutral  vessel  is  engaged  in  a  trade  which  is  closed 
in  time  of  peace  remains  outside  the  scope  of  this  rule  and  is  in  no  wise 
affected  by  it.' 

"The  principle,  therefore,  is  that  the  neutral  or  enemy  character  of  a 
vessel  is  determined  by  the  flag  which  she  is  entitled  to  fly.  It  is  a  simple 
rule  which  appears  satisfactorily  to  meet  the  special  case  of  ships,  as  dis- 
tinguished from  that  of  other  movable  property,  and  notably  of  the  cargo. 
From  more  than  one  point  of  view  ships  may  be  said  to  possess  an  individu- 
ality; notably,  they  have  a  nationality,  a  national  character.  This  attri- 
bute of  nationality  finds  visible  expression  in  the  right  to  fly  a  flag.  It  has 
the  effect  of  placing  ships  under  the  protection  and  control  of  the  state 
to  which  they  belong.  It  makes  them  amenable  to  the  sovereignty  and 
to  the  laws  of  that  state  and  liable  to  requisition  should  the  occasion  arise. 
Here  is  the  surest  test  of  whether  a  vessel  is  really  a  unit  in  the  merchant 
marine  of  a  country,  and  here,  therefore,  the  best  test  by  which  to  decide 
whether  her  character  is  neutral  or  enemy.  It  is,  moreover,  preferable  to 
rely  exclusively  upon  this  test  and  to  discard  all  considerations  connected 
with  the  personal  status  of  the  owner. 


\ 


APPENDIX  IV  587 

"The  text  makes  use  of  the  words  'the  flag  which  the  vessel  is  entitled 
to  fly';  that  expression  means,  of  course,  the  flag  under  which,  whether 
she  is  actually  flying  it  or  not,  the  vessel  is  entitled  to  sail  according  to  the 
municipal  laws  which  govern  that  right. 

"Article  57  safeguards  the  provisions  respecting  transfer  to  another 
flag,  as  to  which  it  is  suflicient  to  refer  to  articles  55  and  56;  a  vessel  may 
very  well  have  the  right  to  fly  a  neutral  flag,  as  far  as  the  law  of  the  coun- 
try to  which  she  claims  to  belong  is  concerned,  but  may  be  treated  as  an 
enemy  vessel  by  a  belligerent,  because  the  transfer  in  virtue  of  which  she 
has  hoisted  the  neutral  flag  is  annulled  by  article  55  or  article  56. 

"Lastly,  the  question  was  raised  whether  a  vessel  loses  her  neutral 
character  when  she  is  engaged  in  a  trade  which  the  enemy,  prior  to  the 
war,  reserved  exclusively  for  his  national  vessel;  but  as  has  been  observed 
above  in  connection  with  the  subject  of  unneutral  service,  no  agreement 
was  reached,  and  the  question  remains  an  open  one,  as  the  second  para- 
graph of  article  57  is  careful  to  explain. 

'"Art.  58.  The  neutral  or  enemy  character  of  goods  found  on  board 
an  enemy  vessel  is  determined  by  the  neutral  or  enemy  character  of  the 
owner.' 

"Unlike  ships,  goods  have  no  individuality  of  their  own;  their  neutral 
or  enemy  character  is  made  to  depend  upon  the  personal  status  of  their 
owner.  This  opinion  prevailed  after  an  exhaustive  study  of  different 
views,  which  inclined  toward  reliance  on  the  country  of  origin  of  the  goods, 
the  status  of  the  person  at  whose  risk  they  are,  of  the  consignee,  or  of  the 
consignor.  The  test  adopted  in  article  58  appears,  moreover,  to  be  in 
conformity  with  the  terms  of  the  declaration  of  Paris,  as  also  with  those 
of  the  convention  of  The  Hague  of  the  ISth  October,  1907,  relative  to 
the  establishment  of  an  international  prize-court,  where  the  expression 
'neutral  or  enemy  property'  is  used.     (Arts.  1,  3,  4,  8.) 

"But  it  cannot  be  concealed  that  article  58  solves  no  more  than  a  part 
of  the  problem,  and  that  the  easier  part;  it  is  the  neutral  or  enemy  char- 
acter of  the  owner  which  determines  the  character  of  the  goods,  but  what 
is  to  determine  the  neutral  or  enemy  character  of  the  owner?  On  this 
point  nothing  is  said,  because  it  was  found  impossible  to  arrive  at  an  agree- 
ment. Opinions  were  divided  between  domicile  and  nationality;  no  use- 
ful purpose  will  be  served  by  reproducing  here  the  arguments  adduced  to 
support  the  two  positions.  It  was  hoped  that  a  compromise  might  have 
been  reached  on  the  basis  of  a  clause  to  the  following  effect: 

"'The  neutral  or  enemy  character  of  goods  found  on  board  an  enemy 
vessel  is  determined  by  the  neutral  or  enemy  nationality  of  their  owner, 
or,  if  he  is  of  no  nationality  or  of  double  nationality  (i.  e.,  both  neutral 
and  enemy),  by  his  domicile  in  a  neutral  or  enemy  country; 

"'Provided  that  goods  belonging  to  a  limited  liability  or  joint  stock 
company  are  considered  as  neutral  or  enemy  according  as  the  company 
has  its  headquarters  in  a  neutral  or  enemy  country.' 

"But  there  was  no  unanimity. 


588  APPENDIX  IV 

'"Art.  59.  In  the  absence  of  proof  of  the  neutral  character  of  goods 
found  on  board  an  enemy  vessel,  they  are  presumed  to  be  enemy  goods.' 

"Article  59  gives  expression  to  the  traditional  rule  according  to  which 
goods  found  on  board  an  enemy  vessel  are,  failing  proof  to  the  contrary, 
presumed  to  be  enemy  goods;  this  is  merely  a  simple  presumption,  which 
leaves  to  the  claimant  the  right,  but  at  the  same  time  the  onus,  of  proving 
his  title. 

'"Art.  60.  Enemy  goods  on  board  an  enemy  vessel  retain  their  enemy 
character  until  they  reach  their  destination,  notwithstanding  any  transfer 
effected  after  the  outbreak  of  hostilities  while  the  goods  are  being  forwarded. 
'"If,  however,  prior  to  the  capture,  a  former  neutral  owner  exercises, 
on  the  bankruptcy  of  an  existing  enemy  owner,  a  recognized  legal  right 
to  recover  the  goods,  they  regain  their  neutral  character.' 

"This  provision  contemplates  the  case  where  goods  which  were  enemy 
property  at  the  time  of  despatch  have  been  the  subject  of  a  sale  or  trans- 
fer during  the  course  of  the  voyage.  The  ease  with  which  enemy  goods 
might  secure  protection  from  the  exercise  of  the  right  of  capture  by  means 
of  a  sale  which  is  made  subject  to  a  reconveyance  of  the  property  on  ar- 
rival has  always  led  to  a  refusal  to  recognize  such  transfers.  The  enemy 
character  subsists. 

"With  regard  to  the  moment  from  which  goods  must  be  considered  to 
acquire  and  retain  the  enemy  character  of  their  owner,  the  text  has  been 
inspired  by  the  same  spirit  of  equity  as  governed  the  convention  of  The 
Hague,  relative  to  the  status  of  merchant  vessels  on  the  outbreak  of  hos- 
tilities, and  by  the  same  desire  to  protect  mercantile  operations  under- 
taken in  the  security  of  a  time  of  peace.     It  is  only  when  the  transfer  takes 
place  after  the  outbreak  of  hostilities  that  it  is,  so  far  as  the  loss  of  enemy 
character  is  concerned,  inoperative  until  the  arrival  of  the  goods  in  ques- 
tion.    The  date  which  is  taken  into  consideration  here  is  that  of  the  trans- 
fer, and  not  of  the  departure  of  the  vessel.     For,  while  the  vessel  which 
started  before  the  war  began,  and  remains,  perhaps,  unaware  of  the  out- 
break of  hostilities,  may  enjoy  on  this  account  some  degree  of  exemp- 
tion, the  goods  may  nevertheless  possess  enemy  character;    the  enemy 
owner  of  these  goods  is  in  a  position  to  be  aware  of  the  state  of  war,  and  it 
is  for  that  very  reason  that  he  is  likely  to  seek  to  evade  its  consequences. 
"It  was,  however,  thought  right  to  add  what  is,  if  not  a  limitation,  at 
least  a  complement  agreed  to  be  necessary.     In  a  great  number  of  coun- 
tries an  unpaid  vender  has,  in  the  event  of  the  bankruptcy  of  the  buyer, 
a  recognized  legal  right  to  recover  the  goods  which  have  ah-eady  become 
the  property  of  the  buyer  but  not  yet  reached  him  (stoppage  in  transitu). 
In  such  a  case  the  sale  is  cancelled  and,  in  consequence  of  the  recovery, 
the  vender  obtains  the  goods  again  and  is  not  deemed  ever  to  have  ceased 
to  be  the  owner.     This  right  gives  to  neutral  commerce,  in  the  case  of  a 
genuine  bankruptcy,  a  protection  too  valuable  to  be  sacrificed,  and  the 
second  paragraph  of  article  60  is  intended  to  preserve  it. 


APPENDIX  IV  589 

Chapter  VII — Convoy 

"The  practice  of  convoy  has,  in  the  past,  occasionally  given  rise  to  grave 
difficulties  and  even  to  conflict.  It  is  therefore  satisfactory  to  be  able  to 
record  the  agreement  which  has  been  reached  upon  this  subject. 

"'Art.  61.  Neutral  vessels  under  national  convoy  are  exempt  from 
search.  The  commander  of  a  convoy  gives  in  ^\Titing,  at  the  request  of 
the  commander  of  a  belligerent  war-ship,  all  information  as  to  the  char- 
acter of  the  vessels  and  their  cargoes  which  could  be  obtained  by  search.' 

"The  principle  laid  down  is  simple;  a  neutral  vessel  under  the  convoy 
of  a  war-ship  of  her  own  nationality  is  exempt  from  search.  The  reason 
for  this  rule  is  that  the  belligerent  cruiser  ought  to  be  able  to  find  in  the 
assurances  of  the  commander  of  the  convoy  as  good  a  guarantee  as  would 
be  afforded  by  the  exercise  of  the  right  of  search  itself;  in  fact,  she  can- 
not call  in  question  the  assurances  given  by  the  official  representative  of 
a  neutral  government  without  displaying  a  lack  of  international  courtesy. 
If  neutral  governments  allow  belligerents  to  search  vessels  sailing  under 
their  flag,  it  is  because  they  do  not  wish  to  be  responsible  for  the  super- 
vision of  such  vessels,  and  therefore  allow  belligerents  to  protect  them- 
selves. The  situation  is  altered  when  a  neutral  government  consents  to 
undertake  that  responsibility;  the  right  of  search  has  no  longer  the  same 
importance. 

"But  it  follows  from  the  explanation  of  the  rule  respecting  convoy  that 
the  neutral  government  undertakes  to  afford  the  belligerents  every  guar- 
antee that  the  vessels  convoyed  shall  not  take  advantage  of  the  protection 
accorded  to  them  in  order  to  do  anything  inconsistent  with  their  neutral- 
ity, as,  for  example,  to  carry  contraband,  render  unneutral  service  to  the 
belligerent,  or  attempt  to  break  blockade.  There  is  need,  therefore,  that 
a  genuine  supervision  should  be  exercised  from  the  outset  over  the  vessels 
which  are  to  be  convoyed;  and  that  supervision  must  be  continued  through- 
out the  voyage.  The  government  must  act  with  vigilance  so  as  to  prevent 
all  abuse  of  the  right  of  convoy,  and  must  give  to  the  officer  who  is  put  in 
command  of  a  convoy  precise  instructions  to  this  effect. 

"A  belligerent  cruiser  encounters  a  convoy;  she  communicates  with  the 
commander  of  the  convoy,  who  must,  at  her  request,  give  in  wTiting  all 
relevant  information  about  the  vessels  under  his  protection.  A  written 
declaration  is  required,  because  it  prevents  all  ambiguities  and  misunder- 
standings and  because  it  pledges  to  a  greater  extent  the  responsibility  of 
the  commander.  The  object  of  such  a  declaration  is  to  make  search  un- 
necessary by  the  mere  fact  of  giving  to  the  cruiser  the  information  which 
the  search  itself  would  have  supplied. 

"'Art.  62.  If  the  commander  of  the  belligerent  war-ship  has  reason 
to  suspect  that  the  confidence  of  the  commander  of  tlie  convoy  has  been 
abused,  he  communicates  his  .suspicions  to  him.  In  such  a  case  it  is  for 
the  commandfT  of  the  convoy  alone  to  investigate  tlie  matter.  He  must 
record  the  result  of  such  investigation  in  a  report,  of  which  a  copy  is  handed 


590  APPENDIX  IV 

to  the  officer  of  the  war-ship.  If,  in  the  opinion  of  the  commander  of  the 
convoy,  the  facts  shown  in  the  report  justify  the  capture  of  one  or  more 
vessels,  the  protection  of  the  convoy  must  be  withdrawn  from  such  vessels.' 

"In  the  majority  of  cases  the  cruiser  will  be  satisfied  with  the  declaration 
which  the  commander  of  the  convoy  will  have  given  to  her,  but  she  may 
have  serious  grounds  for  believing  that  the  confidence  of  the  commander 
has  been  abused,  as,  for  example,  that  a  ship  under  convoy  of  which  the 
papers  are  apparently  in  order  and  exhibit  nothing  suspicious  is,  in  fact, 
carrying  contraband  cleverly  concealed.  The  cruiser  may,  in  such  a  case, 
communicate  her  suspicions  to  the  commander  of  the  convoy  and  an  inves- 
tigation may  be  considered  necessary.  If  so,  it  will  be  made  by  the  com- 
mander of  the  convoy,  since  it  is  he  alone  who  exercises  authority  over 
the  vessels  placed  under  his  protection.  It  appeared,  nevertheless,  that 
much  difficulty  might  often  be  avoided  if  the  belligerent  were  allowed  to 
be  present  at  this  investigation;  otherwise  he  might  still  suspect,  if  not 
the  good  faith,  at  least  the  vigilance  and  perspicacity  of  the  person  who 
conducted  the  search.  But  it  was  not  thought  that  an  obligation  to  allow 
the  officer  of  the  cruiser  to  be  present  at  the  investigation  should  be  im- 
posed upon  the  commander  of  the  convoy.  He  must  act  as  he  thinks  best; 
if  he  agrees  to  the  presence  of  an  officer  of  the  cruiser,  it  will  be  as  an  act 
of  courtesy  or  good  policy.  He  must  in  every  case  draw  up  a  report  of 
the  investigation  and  give  a  copy  to  the  officer  of  the  cruiser. 

"Differences  of  opinion  may  occur  between  the  two  officers,  particularly 
in  relation  to  conditional  contraband.  The  character  of  a  port  to  which 
a  cargo  of  corn  is  destined  may  be  disputed.  Is  it  an  ordinary  commercial 
port,  or  is  it  a  port  which  serves  as  a  base  of  supply  for  the  armed  forces  ? 
The  situation  which  arises  out  of  the  mere  fact  of  the  convoy  must  in  such 
a  case  be  respected.  The  officer  of  the  cruiser  can  do  no  more  than  make 
his  protest,  and  the  difficulty  must  be  settled  through  the  diplomatic 
channel. 

"The  situation  is  altogether  different  if  a  vessel  under  convoy  is  found 
beyond  the  possibility  of  dispute  to  be  carrying  contraband.  The  vessel 
has  no  longer  a  right  to  protection,  since  the  condition  upon  which  such 
protection  was  granted  has  not  been  fulfilled.  Besides  deceiving  her  own 
government,  she  has  tried  to  deceive  the  belligerent.  She  must  therefore 
be  treated  as  a  neutral  merchant  vessel  encountered  in  the  ordinary  way 
and  searched  by  a  beUigerent  cruiser.  She  cannot  complain  at  being 
exposed  to  such  rigorous  treatment,  since  there  is  in  her  case  an  aggrava- 
tion of  the  offence  committed  by  a  carrier  of  contraband. 

Chapter  VIII — Resistance  to  Search 

"The  subject  treated  in  this  chapter  was  not  mentioned  in  the  pro- 
gramme submitted  by  the  British  Government  in  February,  1908,  but  it 
is  intimately  connected  with  several  of  the  questions  in  that  programme 
and  thus  attracted  the  attention  of  the  conference  in  the  course  of  its 


I  APPENDIX  IV  591 

deliberations;  and  it  was  thought  necessary  to  frame  a  rule  upon  it,  the 
draughting  of  which  presented  little  difficulty. 

"A  belligerent  cruiser  encounters  a  merchant  vessel  and  summons  her 
to  stop  in  order  that  she  may  be  searched.  The  vessel  summoned  does  not 
stop  but  tries  to  avoid  the  search  by  flight.  The  cruiser  may  employ 
force  to  stop  her,  and  the  merchant  vessel,  if  she  is  damaged  or  sunk,  has 
no  right  to  complain,  seeing  that  she  has  failed  to  comply  with  an  obHga- 
tion  imposed  upon  her  by  the  law  of  nations. 

"If  the  vessel  is  stopped  and  it  is  shown  that  it  was  only  in  order  to 
escape  the  inconvenience  of  being  searched  that  recoiu'se  was  had  to  flight, 
and  that  beyond  this  she  had  done  nothing  contrary'  to  neutrality,  she  will 
not  be  punished  for  her  attempt  at  flight.  If,  on  the  other  hand,  it  is 
established  that  the  vessel  has  contraband  on  board,  or  that  she  has  in 
some  way  or  other  failed  to  comply  with  her  duty  as  a  neutral,  she  will 
suffer  the  consequences  of  her  infraction  of  neutrality,  but  in  this  case,  as 
in  the  last,  she  will  not  undergo  any  punishment  for  her  attempt  at  flight. 
Expression  was  given  to  the  contrary  view,  namely,  that  a  ship  should  be 
punished  for  an  obvious  attempt  at  flight  as  much  as  for  forcible  resistance. 
It  was  suggested  that  the  prospect  of  having  the  escaping  vessel  condemned 
as  good  prize  would  influence  the  captain  of  the  cruiser  to  do  his  best  to 
spare  her.     But  in  the  end  this  view  did  not  prevail. 

"'Art.  63.  Forcible  resistance  to  the  legitimate  exercise  of  the  right 
of  stoppage,  search,  and  capture  involves  in  all  cases  the  condemnation  of 
the  vessel.  The  cargo  is  liable  to  the  same  treatment  as  the  cargo  of  an 
enemy  vessel.  Goods  belonging  to  the  master  or  owner  of  the  vessel  are 
treated  as  enemy  goods.' 

"The  situation  is  different  if  forcible  resistance  is  made  to  any  legitimate 
action  by  the  cruiser.  The  vessel  commits  an  act  of  hostility  and  must 
from  that  moment  be  treated  as  an  enemy  vessel;  she  will  therefore  be 
subject  to  condemnation,  although  the  search  may  not  have  shown  that 
anj'thing  contrary'  to  neutrality  had  been  done.  So  far  no  difficulty  seems 
to  arise. 

"What  must  be  decided  with  regard  to  the  cargo?  The  rule  which 
appeared  to  be  the  best  is  that  according  to  which  the  cargo  will  be 
treated  like  the  cargo  on  board  an  enemy  vessel.  This  assimilation  in- 
volves the  follo\^'ing  consequences.  A  neutral  vessel  which  has  offered 
resistance  becomes  an  enemy  vessel  and  the  goods  on  board  are  presumed 
to  be  enemy  goods.  Neutrals  who  are  interested  may  claim  their  property, 
in  accordance  with  article  3  of  the  declaration  of  Paris,  but  enemy  goods 
will  be  condemned,  since  the  rule  that  the  flag  covers  the  goods  can  not 
be  adduced,  because  the  captured  vessel  on  board  which  they  are  found 
is  considered  to  be  an  enemy  vessel.  It  will  be  noticed  that  the  right  to 
claim  the  goods  is  open  to  all  neutrals,  even  to  those  whose  nationality 
is  that  of  the  captured  vessel;  it  would  seem  to  be  an  excess  of  severity 
to  make  such  persons  suffer  for  the  action  of  the  master.  Tliere  is,  how- 
ever, an  exception  as  regards  the  goods  which  belong  to  the  owner  of  the 


692  APPENDIX  IV 

vessel;  it  seems  natural  that  he  should  bear  the  consequences  of  the  acts 
of  his  agent.  His  property  on  board  the  vessel  is  therefore  treated  as 
enemy  goods.  A  fortiori  the  same  rule  applies  to  the  goods  belonging  to 
the  master. 

Chapter  IX — Compensation 

This  chapter  is  of  very  general  application,  inasmuch  as  the  provisions 
which  it  contains  are  operative  in  all  the  numerous  cases  in  which  a  cruiser 
may  capture  a  vessel  or  goods. 

"'Art.  64.  If  the  capture  of  a  vessel  or  of  goods  is  not  upheld  by  the 
prize-court,  or  if  the  prize  is  released  without  any  judgment  being  given, 
the  parties  interested  have  the  right  to  compensation,  unless  there  were 
good  reasons  for  capturing  the  vessel  or  goods.' 

"A  cruiser  has  captured  a  neutral  vessel  on  the  ground,  for  example, 
of  carriage  of  contraband  or  breach  of  blockade.  The  prize-court  releases 
the  vessel,  declaring  the  capture  to  be  void.  This  decision  alone  is  evi- 
dently not  enough  to  indemnify  the  parties  interested  for  the  loss  incurred 
in  consequence  of  the  capture,  and  this  loss  may  have  been  considerable, 
since  the  vessel  has  been  during  a  period,  which  may  often  be  a  very  long 
one,  prevented  from  engaging  in  her  ordinary  trade.  May  these  parties 
claim  to  be  compensated  for  this  injury  ?  Reason  requires  that  the  affirm- 
ative answer  should  be  given,  if  the  injury  has  been  undeserved — that  is 
to  say,  if  the  capture  was  not  brought  about  by  some  fault  of  the  parties. 
It  may,  indeed,  happen  that  there  was  good  reason  for  the  capture,  be- 
cause the  master  of  the  vessel  searched  did  not  produce  evidence  which 
ought  in  the  ordinary  course  to  have  been  available  and  which  was  only 
furnished  at  a  later  stage.  In  such  a  case  it  would  be  unjust  that  com- 
pensation should  be  awarded.  On  the  other  hand,  if  the  cruiser  has  really 
been  at  fault,  if  the  vessel  has  been  captured  when  there  were  not  good 
reasons  for  doing  so,  it  is  just  that  compensation  should  be  granted. 

"It  may  also  happen  thdt  a  vessel  which  has  been  captured  and  taken 
into  a  port  is  released  by  the  action  of  the  executive  without  the  inter- 
vention of  a  prize-court.  The  existing  practice,  under  such  circumstances, 
is  not  uniform.  In  some  countries  the  prize-court  has  no  jurisdiction, 
unless  there  is  a  question  of  vahdating  a  capture,  and  cannot  adjudicate 
on  a  claim  for  compensation  based  upon  the  ground  that  the  capture 
would  have  been  held  unjustifiable;  in  other  countries  the  prize-court 
would  have  jurisdiction  to  entertain  a  claim  of  this  kind.  On  this  point, 
therefore,  there  is  a  difference  which  is  not  altogether  equitable,  and  it  is 
desirable  to  lay  down  a  rule  which  wUl  produce  the  same  result  in  all  coun- 
tries. It  is  reasonable  that  every  capture  effected  without  good  reasons 
should  give  to  the  parties  interested  a  right  to  compensation  without  its 
being  necessary  to  draw  any  distinction  between  the  cases  in  which  the 
capture  has  or  has  not  been  followed  by  a  decision  of  a  prize-court;  and 
this  argument  is  all  the  more  forcible  when  the  capture  may  have  so  little 
justification  that  the  vessel  is  released  by  the  action  of  the  executive.     A 


APPENDIX  IV  593 

provision  in  general  terms  has  therefore  been  adopted,  which  is  capable 
of  covering  all  cases  of  capture. 

"It  should  be  observed  that  in  the  text  no  reference  is  made  to  the 
question  whether  the  national  tribunals  are  competent  to  adjudicate  on  a 
claim  for  compensation.  In  cases  where  proceedings  are  taken  against  the 
property  captured  no  doubt  upon  this  point  can  be  entertained.  In  the 
course  of  the  proceedings  taken  to  determine  the  validity  of  a  capture 
the  parties  interested  have  the  opportunity  of  making  good  their  right  to 
compensation,  and  if  the  national  tribunal  does  not  give  tliera  satisfaction 
they  can  apply  to  the  international  prize-court.  If,  on  the  other  hand, 
the  action  of  the  belligerent  has  been  confined  to  the  captiu-e  it  is  the  law 
of  the  belligerent  captor  which  decides  whether  there  are  tribunals  com- 
petent to  entertain  a  demand  for  compensation;  and  if  so,  what  are  those 
tribunals?  The  international  court  has  not,  according  to  the  convention 
of  The  Hague,  any  jurisdiction  in  such  a  case.  From  an  international 
point  of  view  the  diplomatic  channel  is  the  only  one  available  for  making 
good  such  a  claim,  whether  the  cause  for  complaint  is  founded  on  a  decision 
actually  delivered  or  on  the  absence  of  any  tribunal  having  jurisdiction 
to  entertain  it. 

"The  question  was  raised  as  to  whether  it  was  necessary  to  draw  a  dis- 
tinction between  the  direct  and  the  indirect  losses  suffered  by  vessel  or 
goods.  The  best  course  appeared  to  be  to  leave  the  prize-court  free  to 
estimate  the  amount  of  compensation  due,  which  will  vary  according  to 
the  circumstances  and  cannot  be  laid  down  in  advance  in  rules  going  into 
minute  details. 

"For  the  sake  of  simplicity  mention  has  only  been  made  of  the  vessel, 
but  what  has  been  said  applies,  of  course,  to  cargo  captured  and  after- 
ward released.  Innocent  goods  on  board  a  vessel  which  has  been  captured 
suffer,  in  the  same  way,  all  the  inconvenience  which  attends  the  capture 
of  the  vessel;  but  if  there  was  good  cause  for  capturing  the  vessel  whether 
the  capture  has  subsequently  been  held  to  be  valid  or  not,  the  owners  of 
the  cargo  have  no  right  to  compensation. 

"It  is  perhaps  useful  to  indicate  certain  cases  in  which  the  capture  of 
a  vessel  would  be  justified,  whatever  might  be  the  ultimate  decision  of 
the  prize-court.  Notably,  there  is  the  case  where  some  or  all  of  the  ship's 
papers  have  been  thrown  overboard,  suppressed,  or  intentionally  destroyed 
on  the  initiative  of  the  master  or  one  of  the  crew  or  passengers.  There  is 
in  such  a  case  an  clement  which  will  justify  any  suspicion  and  afford  an 
excuse  for  capturing  the  vessel,  subject  to  the  master's  ability  to  account 
for  his  action  before  the  prize-court.  Even  if  the  court  should  accept  the 
explanation  given  and  should  not  find  any  reason  for  condemnation,  the 
parties  interested  cannot  hope  to  recover  compensation. 

"An  analogous  case  would  be  that  in  which  there  were  found  on  board 
two  sets  of  papers,  or  false  or  forged  papers,  if  this  irregularity  were  con- 
nected with  circumstances  calculated  to  contribute  to  the  capture  of  the 
vessel. 


594  APPENDIX  IV 

"It  appeared  sufficient  that  these  cases  in  which  there  would  be  a  reason- 
able excuse  for  the  capture  should  be  mentioned  in  the  present  report  and 
should  not  be  made  the  object  of  express  provisions,  since  otherwise  the 
mention  of  these  two  particular  cases  might  have  led  to  the  supposition 
that  they  were  the  only  cases  in  which  a  capture  could  be  justified. 

"Such,  then,  are  the  principles  of  international  law  to  which  the  naval 
conference  has  sought  to  give  recognition  as  being  fitted  to  regulate  in 
practice  the  intercourse  of  nations  on  certain  important  questions  in  regard 
to  which  precise  rules  have  hitherto  been  wanting.  The  conference  has 
thus  taken  up  the  work  of  codification  begun  by  the  declaration  of  Paris 
of  1856.  It  has  worked  in  the  same  spirit  as  the  second  peace  conference, 
and,  taking  advantage  of  the  labors  accomplished  at  The  Hague,  it  has 
been  able  to  solve  some  of  the  problems  which,  owing  to  the  lack  of  time, 
that  conference  was  compelled  to  leave  unsolved.  Let  us  hope  that  it 
may  be  possible  to  say  that  those  who  have  drawn  up  the  declaration  of 
London  of  1909  are  not  altogether  unworthy  of  their  predecessors  of  1856 
and  1907. 

Pinal  Provisions 

These  provisions  have  reference  to  various  questions  relating  to  the 
effect  of  the  declaration,  its  ratification,  its  coming  into  force,  its  denun- 
ciation, and  the  accession  of  unrepresented  powers. 

'"Art.  65.  The  provisions  of  the  present  declaration  must  be  treated 
as  a  whole  and  cannot  be  separated.* 

"This  article  is  of  great  importance  and  is  in  conformity  with  that  which 
was  adopted  in  the  declaration  of  Paris. 

"The  rules  contained  in  the  present  declaration  relate  to  matters  of 
great  importance  and  great  diversity.  They  have  not  all  been  accepted 
with  the  same  degree  of  eagerness  by  all  the  delegations.  Concessions 
have  been  made  on  one  point  in  consideration  of  concessions  obtained  on 
another.  The  whole,  all  things  considered,  has  been  recognized  as  satis- 
factory, and  a  legitimate  expectation  would  be  falsified  if  one  power  might 
make  reservations  on  a  rule  to  which  another  power  attached  particular 
importance. 

"'Art.  66.  The  signatory  powers  undertake  to  insure  the  mutual 
observance  of  the  rules  contained  in  the  present  declaration  in  any  war  in 
which  all  the  belligerents  are  parties  thereto.  They  will  therefore  issue 
the  necessary  instructions  to  their  authorities  and  to  their  armed  forces, 
and  will  take  such  measures  as  may  be  required  in  order  to  insure  that 
it  will  be  applied  by  their  courts,  and  more  particularly  by  their  prize- 
courts.' 

"According  to  the  engagement  resulting  from  this  article,  the  declara- 
tion applies  to  the  relations  between  the  signatory  powers  when  the  bellig- 
erents are  likewise  parties  to  the  declaration. 

"It  will  be  the  duty  of  each  power  to  take  the  measures  necessary  to 
insure  the  observance  of  the  declaration.     These  measures  may  vary  in 


APPENDIX  IV  595 

different  countries  and  may  or  may  not  involve  the  intervention  of  the 
legislature.     The  matter  is  one  of  national  legal  requirements. 

"It  should  be  observed  that  neutral  powers  also  may  find  themselves 
in  a  position  of  having  to  give  instructions  to  their  authorities,  notably 
to  the  commanders  of  convoys,  as  previously  explained. 

"'Art.  67.     The  present  declaration  shall  be  ratified  as  soon  as  possible. 

'"The  ratifications  shall  be  deposited  in  London. 

'"The  first  deposit  of  ratifications  shall  be  recorded  in  a  protocol  signed 
by  the  representatives  of  the  powers  taking  part  therein  and  by  His 
Britannic  Majesty's  principal  secretary  of  state  for  foreign  affairs. 

"'The  subsequent  deposits  of  ratification  shall  be  made  by  means  of  a 
written  notification  addressed  to  the  British  Government  and  accom- 
panied by  the  instrument  of  ratification. 

*"A  duly  certified  copy  of  the  protocol  relating  to  the  first  deposit  of 
ratifications  and  of  the  notifications  mentioned  in  the  preceding  para- 
graph, as  well  as  of  the  instruments  of  ratification  which  accompany  them, 
shall  be  immediately  sent  by  the  British  Government,  through  the  diplo- 
matic channel,  to  the  signatory  powers.  The  said  Government  shall,  in 
the  cases  contemplated  in  the  preceding  paragraph,  inform  them  at  the 
same  time  of  the  date  on  which  it  received  the  notification.' 

"This  provision,  of  a  purely  formal  character,  needs  no  explanation. 
The  wording  adopted  at  The  Hague  by  the  second  peace  conference  has 
been  borrowed. 

"'Art.  68.  The  present  declaration  shall  take  effect,  in  the  case  of  the 
powers  which  were  parties  to  the  first  deposit  of  ratifications,  sixty  daya 
after  the  date  of  the  protocol  recording  such  deposit  and,  in  the  case  of 
the  powers  which  shall  ratify  subsequently,  sixty  days  after  the  notifica- 
tion of  their  ratification  shall  have  been  received  by  the  British  Govern- 
ment. 

"'Art.  69.  In  the  event  of  one  of  the  signatory  powers  wishing  to  de- 
nounce the  present  declaration,  such  denunciation  can  only  be  made  to 
take  effect  at  the  end  of  a  period  of  twelve  years  beginning  sixty  days 
after  the  first  deposit  of  ratifications,  and  after  that  time,  at  the  end  of 
successive  periods  of  sLx  years,  of  which  the  first  will  begin  at  the  end  of 
the  period  of  twelve  years. 

"'Such  denunciation  must  be  notified  in  writing,  at  least  one  year  in 
advance,  to  the  British  Government,  which  shall  inform  all  the  other 
powers. 

"'It  will  only  operate  in  respect  of  the  denouncing  power.' 

"It  follows  implicitly  from  article  69  that  the  declaration  is  of  indefinite 
duration.  The  periods  after  which  denunciation  is  allowed  have  been 
fixed  on  the  analogy  of  the  convention  for  the  establishment  of  an  inter- 
national prize-court. 

'"Art.  70.  The  powers  represented  at  the  London  naval  conference 
attach  particular  importance  to  the  general  recognition  of  the  rules  which 
they  have  adopted  and  therefore  express  the  hope  that  the  powers  which 


596  APPENDIX  IV 

were  not  represented  there  will  accede  to  the  present  declaration.  They 
request  the  British  Government  to  invite  them  to  do  so. 

"'A  power  which  desires  to  accede  shall  notify  its  intention  in  writing 
to  the  British  Government  and  transmit  simultaneously  the  act  of  acces- 
sion, which  will  be  deposited  in  the  archives  of  the  said  Government. 

'"The  said  Government  shall  forthwith  transmit  to  all  the  other  powers 
a  duly  certified  copy  of  the  notification,  together  with  the  act  of  accession, 
and  communicate  the  date  on  which  such  notification  was  received.  The 
accession  takes  effect  sixty  days  after  such  date. 

"'In  respect  of  all  matters  concerning  this  declaration,  acceding  powers 
shall  be  on  the  same  footing  as  the  signatory  powers.' 

"The  declaration  of  Paris  also  contained  an  invitation  to  the  powers 
which  were  not  represented  to  accede  to  the  declaration.  The  official 
invitation  in  this  case,  instead  of  being  made  individually  by  each  of  the 
powers  represented  at  the  conference,  may  more  conveniently  be  made 
by  Great  Britain  acting  in  the  name  of  all  the  powers. 

"The  procedure  for  accession  is  very  simple.  The  fact  that  the  ac- 
ceding powers  are  placed  on  the  same  footing  in  every  respect  as  the 
signatory  powers,  of  course  involves  compliance  by  the  former  with  article 
65.  A  power  can  accede  only  to  the  whole,  but  not  merely  to  a  part,  of 
the  declaration. 

"'Art.  71.  The  present  declaration,  which  bears  the  date  of  the  26th 
February,  1909,  may  be  signed  in  London  up  till  the  30th  June,  1909,  by 
the  plenipotentiaries  of  the  powers  represented  at  the  naval  conference.* 

"As  at  The  Hague,  account  has  been  taken  of  the  situation  of  certain 
powers  the  representatives  of  which  may  not  be  in  a  position  to  sign  the 
declaration  at  once,  but  which  desire,  nevertheless,  to  be  considered  as 
signatory,  and  not  as  acceding,  powers. 

"It  is  scarcely  necessary  to  say  that  the  plenipotentiaries  of  the  powers 
referred  to  in  article  71  are  not  necessarily  those  who  were,  as  such,  dele- 
gates at  the  naval  conference. 

"'In  faith  whereof  the  plenipotentiaries  have  signed  the  present  declara- 
tion and  have  thereto  affixed  their  seals. 

"'Done  at  London  the  twenty-sLxth  day  of  February,  one  thousand 
nine  hundred  and  nine,  in  a  single  original,  which  shall  remain  deposited 
in  the  archives  of  the  British  Government,  and  of  which  duly  certified 
copies  shall  be  sent  through  the  diplomatic  channel  to  the  powers  rep- 
resented at  the  naval  conference.'" 

[Translation] 
FINAL  PROTOCOL  OF  THE  LONDON  NAVAL  CONFERENCE 


{<r 


'The  London  Naval  Conference,  called  together  by  His  Britannic 
Majesty's  Government,  assembled  at  the  foreign  office  on  the  4th  Decem- 
ber, 1908,  with  the  object  of  laying  down  the  generally  recognized  prin- 


APPENDIX  IV  597 

ciples  of  international  law  in  accordance  with  Article  7  of  the  convention 
signed  at  The  Hague  on  the  ISth  October,  1907,  for  the  estabUshment  of 
an  international  prize-court." 
The  powers  enumerated  in  the  Conference  took  part  in  this  assembly. 
"In  a  series  of  meetings  held  from  December  4,  1008,  to  February  26, 
1909,  the  Conference  decreed  with  a  view  to  its  submission  to  the  signature 
of  its  Plenipotentiaries  the  Declaration  regarding  the  laio  of  maritime  war, 
the  text  of  which  is  annexed  to  the  present  Protocol. 

"Moreover,  the  following  wish  h^^s  been  adopted  by  the  Delegates  of 
the  Powers  which  have  signed  or  which  have  expressed  the  intention  of 
signing  The  Hague  Convention  dated  October  18,  1907,  for  the  establish- 
ment of  an  International  Prize-Court: 

"'The  delegates  of  the  powers  represented  at  the  naval  conference  which 
have  signed  or  expressed  the  intention  of  signing  the  convention  of  The 
Hague  of  the  18th  October,  1907,  for  the  establishment  of  an  international 
prize-court,  having  regard  to  the  difficulties  of  a  constitutional  nature 
which,  in  some  States,  stand  in  the  way  of  the  ratification  of  that  conven- 
tion in  its  present  form,  agree  to  call  the  attention  of  their  respective 
Governments  to  the  advantage  of  concluding  an  arrangement  under  which 
such  States  would  have  the  power,  at  the  time  of  depositing  their  ratifica- 
tions, to  add  thereto  a  reservation  to  the  effect  that  resort  to  the  interna- 
tional prize-court  in  respect  of  decisions  of  their  national  tribunals  shall 
take  the  form  of  a  direct  claim  for  compensation,  provided  always  that 
the  effect  of  this  reservation  shall  not  be  such  as  to  impair  the  rights  se- 
n^'!  ired  under  the  said  convention,  either  to  individuals  or  to  their  govern- 
Bi   ^nts,  and  that  the  terms  of  the  reservation  shall  form  the  subject  of  a 
•*4  bsequent  understanding  between  the  powers  signatory  of  that  con- 
V*  ntion.' 

"In  faith  whereof  the  plenipotentiaries  and  the  delegates  representing 
%k  ose  plenipotentiaries  who  have  already  left  London  have  signed  the 
^▼>i-esent  protocol. 

"Done  at  London  the  twenty-sixth  day  of  February,  one  thousand  nine 
hundred  and  nine,  in  a  single  original,  which  shall  be  deposited  in  the 
archives  of  the  British  Government  and  of  which  duly  certified  copies 
shall  be  sent  through  the  diplomatic  channel  to  the  powers  represented 
at  the  naval  conference." 


APPENDIX  V 

NEUTRALITY— GERMANY  AND  GREAT  BRITAIN 

A  Proclamation 

BY  THE   PRESIDENT  OF  THE  UNITED   STATES   OF  AMERICA 

Whereas  a  state  of  war  unhappily  exists  between  Germany  and  Great 
Britain;  And  Whereas  the  United  States  is  on  terms  of  friendship  and 
amity  with  the  contending  powers  and  with  the  persons  inhabiting  their 
several  dominions; 

And  Whereas  there  are  citizens  of  the  United  States  residing  within 
the  territories  or  dominions  of  each  of  the  said  belligerents  and  carrying 
on  commerce,  trade,  or  other  business  or  pursuits  therein; 

And  Whereas  there  are  subjects  of  each  of  the  said  belligerents  resid- 
ing within  the  territory  or  jurisdiction  of  the  United  States  and  carrying 
on  commerce,  trade,  or  other  business  or  pursuits  therein; 

And  Whereas  the  laws  and  treaties  of  the  United  States,  without  in- 
terfering with  the  free  expression  of  opinion  and  svmpathy,  or  with  the 
commercial  manufacture  or  sale  of  arms  or  munitions  of  war,  nevertheless 
impose  upon  all  persons  who  may  be  within  their  territory  and  jurisdiction 
the  duty  of  an  impartial  neutrality  during  the  existence  of  the  contest; 

And  Whereas  it  is  the  duty  of  a  neutral  government  not  to  permit  or 
suffer  the  making  of  its  waters  subservient  to  the  purposes  of  war; 

Now,  Therefore,  I,  Woodrow  Wilson,  President  of  the  United  States 
of  America,  in  order  to  preserve  the  neutrality  of  the  United  States  and 
of  its  citizens  and  of  persons  within  its  territory  and  jurisdiction,  and  to 
enforce  its  laws  and  treaties,  and  in  order  that  all  persons,  being  warned 
of  the  general  tenor  of  the  laws  and  treaties  of  the  United  States  in  this 
behalf,  and  of  the  law  of  nations,  may  thus  be  prevented  from  any  viola- 
tion of  the  same,  do  hereby  declare  and  proclaim  that  by  certain  provisions 
of  the  act  approved  on  the  4th  day  of  March,  A.  D.  1909,  commonly 
known  as  the  "Penal  Code  of  the  United  States,"  the  following  acts  are 
forbidden  to  be  done,  under  severe  penalties,  within  the  territory  and 
jurisdiction  of  the  United  States,  to  wit: 

"1.  Accepting  and  exercising  a  commission  to  serve  either  of  the  said 
belligerents  by  land  or  by  sea  against  the  other  belligerent. 

"2.  Enlisting  or  entering  into  the  service  of  either  of  the  said  belliger- 
ents as  a  soldier,  or  as  a  marine,  or  seaman  on  board  of  any  vessel  of  war, 
letter  of  marque,  or  privateer. 

"3.  Hiring  or  retaining  another  person  to  enlist  or  enter  himself  in  the 

598 


APPENDIX  V  599 

service  of  either  of  the  said  belligerents  as  a  soldier,  or  as  a  marine,  or  sea- 
man on  board  of  any  vessel  of  war,  letter  of  marque,  or  privateer. 

"4.  Hiring  another  person  to  go  beyond  the  limits  or  jurisdiction  of 
the  United  States  with  intent  to  be  enlisted  as  aforesaid. 

"5.  Hiring  another  person  to  go  beyond  the  limits  of  the  United  States 
with  intent  to  be  entered  into  service  as  aforesaid. 

"6.  Retaining  another  person  to  go  beyond  the  limits  of  the  United 
States  with  intent  to  be  enlisted  as  aforesaid. 

"7.  Retaining  another  person  to  go  beyond  the  limits  of  the  United 
States  with  intent  to  be  entered  into  service  as  aforesaid.  (But  the  said 
act  is  not  to  be  construed  to  extend  to  a  citizen  or  subject  of  either  bellig- 
erent who,  being  transiently  within  the  United  States,  shall,  on  board  of 
any  vessel  of  war,  which,  at  the  time  of  its  arrival  within  the  United  States, 
was  fitted  and  equipped  as  such  vessel  of  war,  enlist  or  enter  himself  or 
hire  or  retain  another  subject  or  citizen  of  the  same  belligerent,  who  is 
transiently  within  the  United  States,  to  enlist  or  enter  himself  to  serve 
such  belligerent  on  board  such  vessel  of  war,  if  the  United  States  shall  then 
be  at  peace  with  such  belligerent.) 

"8.  Fitting  out  and  arming,  or  attempting  to  fit  out  and  arm,  or  pro- 
curing to  be  fitted  out  and  armed,  or  knowingly  being  concerned  in  the 
furnishing,  fitting  out,  or  arming  of  any  ship  or  vessel  with  intent  that 
such  ship  or  vessel  shall  be  employed  in  the  service  of  either  of  the  said 
belligerents. 

"9.  Issuing  or  delivering  a  commission  within  the  territory  or  jurisdic- 
tion of  the  United  States  for  any  ship  or  vessel  to  the  intent  that  she  may 
be  employed  as  aforesaid. 

"10.  Increasing  or  augmenting,  or  procuring  to  be  increased  or  aug- 
mented, or  knowingly  being  concerned  in  increasing  or  augmenting,  the 
force  of  any  ship  of  war,  cruiser,  or  other  armed  vessel,  which  at  the  time 
of  her  arrival  within  the  United  States  was  a  ship  of  war,  cruiser,  or  armed 
vessel  in  the  service  of  either  of  the  said  belligerents,  or  belonging  to  the 
subjects  of  either,  by  adding  to  the  number  of  guns  of  such  vessels,  or  by 
changing  those  on  board  of  her  for  guns  of  a  larger  caliber,  or  by  the  addi- 
tion thereto  of  any  equipment  solely  applicable  to  war. 

"11.  Beginning  or  setting  on  foot  or  providing  or  preparing  the  means 
for  any  military  expedition  or  enterprise  to  be  carried  on  from  the  terri- 
tory or  jurisdiction  of  the  United  States  against  the  territories  or  dominions 
of  either  of  the  said  belligerents." 

And  I  do  hereby  further  declare  and  proclaim  that  any  frequenting 
and  use  of  the  waters  within  the  territorial  jurisdiction  of  the  United 
States  by  the  armed  vessels  of  a  belligerent,  whether  public  ships  or  priva- 
teers, for  the  purpose  of  preparing  for  hostile  operations,  or  as  posts  of 
observation  upon  the  ships  of  war  or  privateers  or  merchant  vessels  of  a 
belligerent  lying  within  or  being  about  to  enter  the  jurisdiction  of  the 
United  States,  must  be  regarded  as  unfriendly  and  offensive,  and  in  vio- 
lation of  that  neutrality  which  it  is  the  determination  of  this  government 
to  observe;    and  to  the  end  that  the  hazard  and  inconvenience  of  such 


600  APPENDIX  V 

apprehended  practices  may  be  avoided,  I  further  proclaim  and  declare 
that  from  and  after  the  sixth  day  of  August  instant,  and  during  the  con- 
tinuance of  the  present  hostilities,  no  ship  of  war  or  privateer  of  any 
beUigerent  shall  be  permitted  to  make  use  of  any  port,  harbor,  roadstead, 
or  waters  subject  to  the  jurisdiction  of  the  United  States  from  which  a 
vessel  of  an  opposing  belligerent  (whether  the  same  shall  be  a  ship  of  war, 
a  privateer,  or  a  merchant  ship)  shall  have  previously  departed,  until 
after  the  expiration  of  at  least  twenty-four  hours  from  the  departure  of 
such  last-mentioned  vessel  beyond  the  jurisdiction  of  the  United  States. 
If  any  ship  of  war  or  privateer  of  a  belligerent  shall,  after  the  time  this 
notification  takes  effect,  enter  any  port,  harbor,  roadstead,  or  waters  of 
the  United  States,  such  vessel  shall  be  required  to  depart  and  to  put  to 
sea  within  twenty-four  hours  after  her  entrance  into  such  port,  harbor, 
roadstead,  or  waters,  except  in  case  of  stress  of  weather  or  of  her  requiring 
provisions  or  things  necessary  for  the  subsistence  of  her  crew,  or  for  re- 
pairs; in  any  of  which  cases  the  authorities  of  the  port  or  of  the  nearest 
port  (as  the  case  may  be)  shall  require  her  to  put  to  sea  as  soon  as  possible 
after  the  expiration  of  such  period  of  twenty-four  hours,  without  permit- 
ting her  to  take  in  supplies  beyond  what  may  be  necessary  for  her  immediate 
use;  and  no  such  vessel  which  may  have  been  permitted  to  remain  within 
the  waters  of  the  United  States  for  the  purpose  of  repair  shall  continue 
within  such  port,  harbor,  roadstead,  or  waters  for  a  longer  period  than 
twenty-four  hours  after  her  necessary  repairs  shall  have  been  completed, 
unless  within  such  twenty-four  hours  a  vessel,  whether  ship  of  war,  priva- 
teer, or  merchant  ship  of  an  opposing  belligerent,  shall  have  departed 
therefrom,  in  which  case  the  time  limited  for  the  departure  of  such  ship 
of  war  or  privateer  shall  be  extended  so  far  as  may  be  necessary  to  secure 
an  interval  of  not  less  than  twenty-four  hours  between  such  departure 
and  that  of  any  ship  of  war,  privateer,  or  merchant  ship  of  an  opposing 
belligerent  which  may  have  previously  quit  the  same  port,  harbor,  road- 
stead, or  waters.     No  ship  of  war  or  privateer  of  a  belligerent  shall  be 
detained  in  any  port,  harbor,  roadstead,  or  waters  of  the  United  States 
more  than  twenty-four  hours,  by  reason  of  the  successive  departures  from 
such  port,  harbor,  roadstead,  or  waters  of  more  than  one  vessel  of  an  op- 
posing belligerent.     But  if  there  be  several  vessels  of  opposing  belligerents 
in  the  same  port,  harbor,  roadstead,  or  waters,  the  order  of  their  departure 
therefrom  shall  be  so  arranged  as  to  afford  the  opportunity  of  leaving  alter- 
nately to  the  vessels  of  the  opp>osing  belligerents,  and  to  cause  the  least 
detention  consistent  with  the  objects  of  this  proclamation.     No  ship  of 
war  or  privateer  of  a  belligerent  shall  be  permitted,  while  in  any  port, 
harbor,  roadstead,  or  waters  within  the  jurisdiction  of  the  United  States, 
to  take  in  any  supplies  except  provisions  and  such  other  things  as  may 
be  requisite  for  the  subsistence  of  her  crew,  and  except  so  much  coal  only 
as  may  be  sufficient  to  carry  such  vessel,  if  without  any  sail  power,  to 
the  nearest  port  of  her  own  country;  or  in  case  the  vessel  is  rigged  to  go 
under  sail,  and  may  also  be  propelled  by  steam-power,  then  with  half  the 
quantity  of  coal  which  she  would  be  entitled  to  receive,  if  dependent  upon 


APPENDIX  V  601 

steam  alone,  and  no  coal  shall  be  again  supplied  to  any  such  ship  of  war  or 
privateer  in  the  same  or  any  other  port,  harbor,  roadstead,  or  waters  of  the 
United  States,  without  special  permission,  until  after  the  expiration  of 
three  months  from  the  time  when  such  coal  may  have  been  last  supplied 
to  her  within  the  waters  of  the  United  States,  unless  such  ship  of  war  or 
privateer  shall,  since  last  thus  supplied,  have  entered  a  port  of  the  govern- 
ment to  which  she  belongs. 

And  I  do  further  declare  and  proclaim  that  the  statutes  and  the  treaties 
of  the  United  States  and  the  law  of  nations  alike  require  that  no  person, 
within  the  territory  and  jurisdiction  of  the  United  States,  shall  take  part, 
directly  or  indirectly,  in  the  said  wars,  but  shall  remain  at  peace  with  all 
of  the  said  belligerents,  and  shall  maintain  a  strict  and  impartial  neutrality. 

And  I  do  hereby  enjoin  all  citizens  of  the  United  States,  and  all  per- 
sons residing  or  being  within  the  territory  or  jurisdiction  of  the  United 
States,  to  observe  the  laws  thereof,  and  to  commit  no  act  contrary  to  the 
provisions  of  the  said  statutes  or  treaties  or  in  violation  of  the  law  of 
nations  in  that  behalf. 

And  I  do  hereby  warn  all  citizens  of  the  United  States,  and  all  per- 
sons residing  or  being  within  its  territory  or  jurisdiction  that,  while  the 
free  and  full  expression  of  sympathies  in  public  and  private  is  not  restricted 
by  the  laws  of  the  United  States,  military  forces  in  aid  of  a  belligerent 
cannot  lawfully  be  originated  or  organized  within  its  jurisdiction;  and 
that,  while  all  persons  may  lawfully  and  without  restriction  by  reason  of 
the  aforesaid  state  of  war  manufacture  and  sell  within  the  United  States 
arms  and  munitions  of  war,  and  other  articles  ordinarily  known  as  "con- 
traband of  war,"  yet  they  cannot  carry  such  articles  upon  the  high  seas 
for  the  use  or  service  of  a  belligerent,  nor  can  they  transport  soldiers  and 
officers  of  a  belligerent,  or  attempt  to  break  any  blockade  which  may  be 
lawfully  established  and  maintained  during  the  said  wars  without  incur- 
ring the  risk  of  hostile  capture  and  the  penalties  denounced  by  the  law  of 
nations  in  that  behalf. 

And  I  do  hereby  give  notice  that  all  citizens  of  the  United  States  and 
others  who  may  claim  the  protection  of  this  government,  who  may  mis- 
conduct themselves  in  the  premises,  will  do  so  at  their  peril,  and  that  they 
can  in  no  wise  obtain  any  protection  from  the  government  of  the  United 
States  against  the  consequences  of  their  misconduct. 

In  Witness  Whereof  I  have  hereunto  set  my  hand  and  caused  the  seal 
of  the  United  States  to  be  affixed. 

Done  at  the  city  of  Washington  this  fifth  day  of  August  in  the  year  of 
our  Lord  one  thousand  nine  hundred  and  fourteen  and  of  the 

[seal]     independence  of  the  United  States  of  America  the  one  hundred 
and  thirty-ninth. 

WooDROW  Wilson. 
By  the  President: 

WiLLLV-M  Jennings  Bryan, 

Secretary  of  State. 


INDEX 


Abrogation  of  treaties,  268,  269. 
Abuse  of  flag  of  truce,  328;  of  neutral 

territory.  390-396. 
Accretion  of  territory.  115. 
Acquisition    of   territory,    114-119;    of 

Louisiana.   116;  of  Florida,   116;  by 

lease,  117. 
Adams,  Chas.  Francis,  83. 
Adams,  Joim  Quincy,  96,  284. 
Adjudication  of  prizes,  462,  463. 
Admiralty  Manual.  British,  440. 
Aerial  jurisdiction,  357-359. 
Aerial  warfare,  54,  355;  and  the  laws 

of  war,  359,  360. 
Aeronauts  (balloonists),  317,  355.  360. 
Africa,  case  of  the,  446. 
African  chartered  companies,  64. 
African  continent.  51,  53,  64,  73,  74, 

91,  98,  115,  118,  119.  135-147,  175. 

221.  304. 
African  slave-trade.  45.  154,  155,  163. 
Agents  of  the  state,  199.  200;   as  per- 

sonx  non  gratx,    199.  200.  205,  206. 

212.  213;  without  diplomatic  or  con- 
sular character,  213-216. 
Ages,  the  Middle,  27-32. 
Agreements,    international.    237;    and 

rules  of  international  bodies,  17.  18. 
Air-ships  in  war,  355-357. 
Aix-la-Chapelle,  congress  of,  41,  202. 

297. 
Alabama,  the,   49,   51,   276,   346,   452; 

case  of  rescue  from,  49,  403;  claims, 

50,    51,    276;    rules    as    to    neutral 

duties.  50,  51,  403.  406;  construction 

and  equipment  of,  50,  51,  403,  406, 

408. 
Alaska.  116.  121,  278. 
Aleutian  Islands.  158. 
Alexandroff,  case  of,  192,  193, 
Alexieff.  Admiral,  317.  355. 
Algiers.  221. 

Alienation  of  territory,  377,  379. 
Aliens.  175.  176.  185-189. 
Allegiance,  of  persons,  175-178;  dual, 

183,   185. 
Alsace,  378. 

Alverstone,  Lord,  opinions  of,  2,  9. 
Amalfltana,  tabula,  10. 
Amazon,  the.  135. 
Ambassadors.  197;  immunities  of,  206- 

210. 
Ambrose  Light,  case  of,  78. 
American  Civil  War,  48.  49,  60.  51.  77, 


82-84.  91,   148,    149,  227.   305,  321. 

337.    346,    350.    373,    388,    389,  399- 

403,  405.  419.  447.  448.  452;  recogni- 
tion of  belligerency  of  Confederates, 

82-84;  see  Appendi-X  I. 
American  Indians,  69,  250. 
Amicable    settlement    of    disputes    of 

states,  271.  etc. 
Amphyctional  Council,  25. 
Analogues  of  contraband,  442. 
Anarchists,  183,  184,  186. 
Ancient  peoples,  xisages  of,  20,  etc. 
Andes  Mountains,  121. 
Angary,  right  of,  415,  416. 
Anna,  case  of,  115. 
Antivari.  124. 

Approach,  right  of,  155,  156. 
Araunah,  case  of,  157. 
Arbitration,     274-277;     treaties.     276; 

cases   of,    276-278;   obligatory,   278, 

279. 
Area,  of  right  of  search  of  slave-trade, 

154;  of  maritime  war,  332. 
Argentine  Republic.  122.  191. 
Armaments,    limitation    of,    on    Great 

Lakes,  124. 
Armed  forces  of  the  state,  298,  299. 
Armed  intervention,  296,  297. 
Armed  merchantmen,  335. 
Armed  neutrality,  the.  42.  44. 
Armistices,  328,  329. 
Armor-plates  as  contraband.  429. 
Arms  and  munitions  of  war,  export  and 

trade  in,  403.  439. 
Army  followers,  298. 
Arrest,  beyond  the  marine  league,  129, 

130;  within  legations,  etc.,  206-212. 
Arts  or  sciences,  protection  of  works  of, 

326,  372. 
Aryol,  or  Orel,  case  of.  345. 
Asia.  100,  407. 
Asylum,  right  of.  on  ships  of  war,  162- 

164;  on  merchant  vessels,   169-174; 

In  embas,sies  and  legations,  210-212. 
Atlantic  Ocean,  148. 
Attaches,  naval  and  military,  204. 
Attack  of  enemy  public  vessels,  334— 

336. 
Attainment  of  independence  of  a  state, 

75.   70;    from  an  insurgent  commu- 
nity. 76.  77. 
Attitude  of  United  States  as  to  pacific 

blockade.  291.  292. 
Austen,  John,  3. 


603 


604 


INDEX 


Australia,  221. 

Austria  (Austria-Hungary),  45,  49,  57, 
76,  101,  177,  179,  195.  200,  214,  225. 
269,  384,  461,  476,  479;  case  of  Mar- 
tin Koszta,  177,  178;  immunity  of 
private  property  at  sea  in  war  witti 
Italy,  340,  341. 

Authorities  in  international  law,  15, 
16,  18-20,  30-35;  see  separate  Ust  of 
authorities. 

Automatic  contact  mines,  337. 

Auxiliary  vessels  in  war-time,  337-340, 
345. 

Babylon,  242. 

Bahama  Islands,  as  entrepot  of  block- 
ade, 419. 

Balance  of  power  in  Europe,  99,  100. 

Balkan  War,  356. 

BaUoons  in  war,  355-357,  359,  360,  479; 
projectiles  from,  359,  360,  479;  as 
contraband,  430. 

Baltic  powers,  44. 

Baltic  Sea,  134,  148. 

Barat  of  Turkey,  225. 

Barbarous  forces,  317. 

Barbed  wire  as  contraband,  430. 

Barrundia,  case  of,  171-173. 

Base  of  operations  for  belligerent  men- 
of-war,  401,  402. 

Basis  of  international  law,  14-20. 

Bays:  of  Newfoundland,  126;  Chesa- 
peake and  Delaware,  126. 

Belgium,  45,  65,  66,  75,  88,  166.  386, 
479;  neutralization  of,  45,  65.  75, 
166,  180.  394,  479. 

Belligerency,  state  of,  53;  recognition 
of,  82-85;  see  Appendix  I. 

Belligerent  rights,  315-317. 

Belligerents,  141,  313,  314,  315-317. 
318-324,  373,  390,  395,  405,  451; 
loans  to,  395;  in  neutral  territory, 
398,  etc. ;  acts  from  neutral  territory, 
401,  402,  408,  413,  415;  closing  of 
neutral  ports  to,  402,  404,  405. 

Bentham,  Jeremy,  3. 

Bering  Sea,  149,  151;  arbitration  as  to 
fur-seal  fisheries,  149-150,  151. 

Berlin,  congress  of,  238;  treaty  of,  163, 
244,  269. 

Berlin  conference,  238,  269,  375. 

Berlin  decree,  44. 

Bermudas,  in  the  American  Civil  War. 
419. 

Bernard,  Montague,  5,  238. 

Besieged  towns,  useless  mouths,  313. 

Bill  of  sale  for  American  vessels,  153, 
154. 

Bills  of  exchange,  430. 

Bismarck,  374. 

Black  Sea,  124,  132,  133,  147,  268; 
neutralization  of,  51,  124,  132,  133; 
arsenals,  etc.,  268. 

Blackstone  on  international  law,  9. 

Blaine,  Secretary,  on  Clayton-Bulwer 
treaty,  140,  141.  149. 


Blair,  Hon.  H.  W.,  Chinese  object  to, 

200. 
Blockade,  418-426;  pacific,  289-292;  as 

operation  of  war,  418,  etc.;  area  of, 

418,  419,  424,  425;  effectiveness  of, 

419,  420;  must  be  continuous,  420; 
entry  of  neutral  men-of-war,  420,  421 ; 
declaration  of,  421,  422;  notification 
of,  422,  423;  breach  of,  423,425;  pur- 
suit of  vessels  breaking  blockade. 
424,  425;  zones  of,  424,  425;  duration 
of  liability  to  capture,  425;  by  arti- 
ficial mines,  477,  478. 

Blount,  Jas.  H..  in  Hawaii.  215. 

Bluntschll,  11. 

Boer  War.  53,  72,  74,  346,  388,  436. 

Boggs,  Kear-Admiral,  164. 

Bolivia,  78,  436. 

Bombardment,   of  undefended   places. 

325;  of  private  houses,  325;  by  naval 

forces,  350,  351. 
Booty.     (See  Pillage.) 
Borneo,  68,  118. 
Bosnia,  269. 

Bosphorus.  132,  133;  exclusion  of  men- 
of-war,  132;  treaties  concerning,  132. 
Boundaries  of  states,  119-123. 
Boxer  movement,  102. 
Brazil,  75,  77,  79,  80,  163,  164,  183,  264. 

284. 
Brett,    Justice,    in  case    of  Parlement 

Beige,  166. 
Bright,  John,  7. 
Bristol  Channel,  131. 
British  Africa,  118. 

British  foreign  enlistment  act.  386, 387. 
British  Guiana,  119. 
British  India,  68,  221. 
British   merchant   vessels,   arming   of, 

335. 
British  Orders  in  Council,  44. 
Brussels  code  of  land  warfare,  54,  311. 
Bulgaria,  52,  76,  88,  133. 
Bunch,  Mr.,  consul  at  Charleston,  227. 
Bundesrath,  245. 
Bundesstaat,  76. 
Bureau  of  information  for  prisoners, 

323. 
Burlingame,  case  of,  199. 
BjTikershoek,  15,  18,  38,  39,  149,  211, 

304,  384. 

Cables,  submarine,  in  war-time,  351- 
353;  interruption  of,  351,  352;  Eng- 
lish regulations  concerning  use  in 
Spanish-American  War,  352. 

Cabotage,  128,  449,  451. 

Calvo,  265. 

Canada,  104,  105,  120-122,  124,  131, 
221,  278,  289,  306. 

Canal,  Panama,  139-145;  Bulwer-Clay- 
ton  treaty,  139;  Hay-Pauncefote 
treaty,  139,  140;  Hay-Bunau-Varilla 
treaty,  143-145. 

Canal,  Suez,  regulations  concerning  the, 
138. 


INDEX 


605 


Canals,  interoceanlc,  134-145. 

Canning,  Mr.,  on  neutrality,  386. 

Cape  Colony,  75. 

Capitulations  in  war-time,  328. 

Capitulations  of  Turkey,  124,  219,  231, 
234,  235. 

Capture,  right  of,  340,  347;  of  enemy 
merchant  vessels,  340-345;  of  neu- 
tral vessels,  409-411. 

Captures,  with  respect  to  peace,  376. 

Care  of  sick  and  wounded,  324. 

Caribbean  Sea,  147. 

Caroline  in  Canada,  case  of,  104,  105. 

Carriage  of  contraband,  427:  of  des- 
patches by  neutral  vessels,  442-446. 

Cartel  ships,  336. 

Carthage,  laws  of,  24. 

Case  of  Franconia,  9. 

Castro,  President,  case  of,  197. 

Central  America,  98,  99. 

Ceremonials,  naval,  etc.,  4,  5,  110;  to 
diplomatic  officers,  201,  202,  222. 

Cessation  of  warfare,  372-376. 

Cession  by  conquest,  377,  379;  by  pur- 
chase, 116. 

Chablais,  cession  of,  66. 

Chancellor  in  German  Legation  in 
Chile,  case  of,  210. 

Changes  of  governments,  88-90. 

Charge  d'affaires,  203,  221. 

Charlemagne,  28. 

Charlton,  case  of  extradition  of,  190. 

Chartered  companies,  64. 

Chartered  transports  imder  foreign  flag, 
166,  167. 

Chesapeake,  seizure  of,  399. 

Chesapeake  affair  in  1807,  288,  289. 

Chesapeake  Bay,  126. 

Chiefs  of  state,  19.5-197. 

Chile,  80,  129,  130,  191,  210,  372. 

China,  51,  88,  102,  119,  130,  176,  183, 
188,  199.  200,  215,  224,  231,  250,  290, 
478. 

Chinaware,  not  contraband,  431. 

Chinese,  naturalization  of,  183. 

Chino-Japanese  War,  388. 

Christine  of  Pisa,  30. 

Citizen,  declaration  of  intention  to  be- 
come, 181,  182. 

Citizens,  abroad,  jurisdiction  over,  175, 
178;  protection  of,  175,  176. 

Citizenship,  by  birth,  178-180;  by  nat- 
uralization, 181-185;  of  seamen  on 
board  American  vessels,  184-185; 
of  women,  184;  and  military  service 
requirements,  184. 

Civil  War,  American,  48,  49.  50,  51,  77, 
82-84,  91,  148,  149,  227,  ,305,  321, 
337,  346,  3.''>0,  373,  388,  380,  399-403, 
405,  419,  447,  448,  4.52;  termination 
of,  373;  corninciicement  of,  381;  neu- 
trality during,  388,  390. 

Classification  of  states,  61;  of  unneutral 
service,  442-447. 

Clayton-Bulwer  treaty,  98,  139,  140- 
142. 


Cleveland,  President,  415. 

Clocks  as  contraband,  432. 

Closing  of  ports  by  neutrals,  404,  405. 

Clothing  as  contraband,  428. 

Coal  as  contraband,  430. 

Coaling  in  neutral  ports,  407. 

Coast  fisheries,  exemption  of,  343,  344. 

Coasting  trade,  449-451,  473. 

Cockburn,  Justice,  9,  82. 

Code  of  Manu,  22. 

Codes,  18;  individual,  11. 

Codification  of  internatlonallaw,  10, 11. 

Colliers,  335. 

Collisions,  150-151. 

Colombia,  75,  86.  102,  139,  145. 

Colonial  possessions,  62. 

Colonial  protectorates,  68. 

Colonies,  Spanish-American,  387,  388. 

Colonization,  73,  74. 

Combatants  and  non-combatants,  309, 
312-318.  391. 

Comity  of  nations,  4,  5. 

Command  of  the  sea.  333. 

Commencement  of  peace,  253,  254,  329, 
370. 

Commencement  of  war,  294-297,  376, 
377. 

Commerce  during  war.  301.  304.  340. 

Commissions  of  inquiry.  277.  278. 

Communities,  not  subjects  of  inter- 
national law.  63. 

Compensation  for  capture  when  illegal, 
468,  469. 

Compromis,  272. 

Conception  Bay.  126. 

Concert  of  Europe  (see  Balance  of  Eu- 
rope). 100. 

Concordats.  64. 

Conditional  contraband,  429,  430,  434, 
435.  436. 

Conditions  of  sovereign  states,  61,  62. 

Confederacy,  76. 

Confederacy,  Southern,  49,  77,  82-84, 
91,  227,  305,  373. 

Confederate  States,  recognition  of  bel- 
ligerency of.  82-84. 

Conference.  London  Naval,  of  1909,  57, 
58.  69.  194.  455.  458-460. 

Conferences,  international,  and  con- 
gresses. 238-241. 

Conferences  of  The  Hague,  52-56.  240, 
276,  278.  281,  295;  seo  also  Hague 
conventions. 

Conflict  of  laws.  4. 

Congo,  the.  135. 

Congo  Free  State.  51.  74,  135.  275. 

Congress  of  Vienna,  rules  of.  44,  45, 
202.  203. 

Congresses,  international,  and  confer- 
ences. 238-241. 

Comiuest,  377-378. 

Consolato  del  Mare,  10.  40,  383. 

Constantinojilo.  OonvcMition  of.  137. 

Constitution,  case  of  the,  165. 

Consdtulion  of  tlie  Ignited  States.  9. 
178,  181,  245.  248.  250.  252. 


606 


INDEX 


Constraint  short  of  war,  283,  etc. 

Consul,  definition  of,  220-223;  general 
functions     of,     220-223;     exercising 
diplomatic    functions,    221 ;    powers 
exercised  by  naval  ofHcers,  222 ;  clas' 
siflcation   and  precedents,    223-225 
rights   and   privileges   of,   228,    229 
acting  for  other  governments,   229 
duties    of,    230-232;    where    exterri- 
toriality exists,  231,  234;  in  time  of 
war,   232;   and   marriages,   232;   ter- 
mination of  functions,  233,  234;  with 
judicial  functions,  234,  235. 

Consul  at  Charleston,  case  of,  in  Civil 
War,  227. 

Consular  courts,  marshals  of,  224. 

Consular  systems  of  foreign  countries, 
232,  233. 

Consulates,  immunities  of,  228,  229. 

Consuls,  historical  sketch  of,  218-220. 

Continuity  of  states,  88,  89. 

Continuous  voyages,  425,  433,  434,  435, 
436. 

Contraband  of  war,  427-441;  definition 
of,  427,  428;  arms  as,  428;  horses  as, 
428;  absolute,  428,  429;  enumeration 
of  articles,  428-431;  foodstuffs  as, 
429,  430;  money  as,  429,  430;  con- 
ditional, 429-431 ;  destination  of,  433- 
436;  seizure  of.  433-440. 

Contraband  trade,  penalty  of,  436-440. 

Contract  debts,  convention  for  re- 
covery of,  279,  350,  351. 

Contributions,  306,  307,  326,  351,  367- 
371. 

Conventions  applicable  to  maritime 
warfare,  343,  346,  347,  349-353,  398- 
409,  411-413,  416,  418-426,  428-438. 

Conversion  of  merchantmen  into  war- 
ships, 337-340,  475,  477;  on  the  high 
seas,  475-477. 

Convoy,  vessels  under  neutral,  411-412; 
vessels  under  enemy,  412. 

Copenhagen,  battle  of,  105-107 

Corinto  affair,  288. 

Corporations,  chartered,  64. 

Corporations  as  citizens,  63,  64,  185, 
276.  280.  281. 

Costa  Rica,  170. 

Courtesy,  international,  4,  5. 

Courts  of  arbitration  at  The  Hague, 
277-282. 

Crandall  on  treaties,  246,  252. 

Crete,  290,  291. 

Crews  of  captured  merchantmen,  344. 

Crimean  War,  47,  133,  303,  308. 

Criminals,  extradition  of,  189-192. 

Crusades,  the.  29. 

Cuba,  68,  78,  79,  81,  84,  86,  96,  102, 
107-109,  124,  158,  221,  244,  388. 

Culebra,  158. 

Custom,  a  source  of  international  law, 
14,  15. 

Customs  and  rules  of  peoples  In  early 
days.  15. 

Cyprus,  117. 


Dana,  R.  H.;  17,  18.  82,  83,  251,  341: 

see  Appendix  I. 

Danish  fleet  at  Copenhagen,  105. 

Danish  West  Indies,  176. 

Danube,  45,  135. 

Dardanelles.  130,  132,  133. 

Dark  and  Middle  Ages,  27-30. 

Days  of  grace,  473,  474. 

Debts,  contract,  recovery  of,  279. 

Decisions  of  arbitral  and  judicial  tri- 
bimals,  17. 

Declaration  of  London,  1909.  11,  12, 
57,  58.  59,  241,  311,  389,  411-413, 
418-426,  428-440,  442-446,  454,  455, 
456,  458,  462,  468,  and  also  Appendix 
IV;  accompanying  report  of  com- 
mittee, 421,  Appendix  IV. 

Declaration  of  Paris,  of  1856,  11,  47- 
49,  311,  419,  471,  472. 

Declaration  of  St.  Petersburg,  1868.  11. 

Declarations  of:  war.  294-296;  neutral- 
ity. 396.  397;  blockade,  421-423; con- 
traband, 429-431;  see  Outbreak  of 
War,  etc. 

Deerhound  and  Alabama,  452. 

De  facto  governments,  90,  91. 

Definition  of  international  law,  1. 

Definition  of  a  sovereign  state,  61. 

Dc  Jure  Belli  ac  Pads.     (See  Grotius.) 

Delaware  Bay,  126. 

Denmark.  42.  74.  105,  106,  252. 

Deserters,  extradition  of,  192.  193. 

Despatches,  carriage  of,  in  war-time  by 
neutrals,  442,  444,  445. 

Destruction  of  enemy's  property  on 
shore.  325,  326. 

Destruction  of  enemy's  vessels  as  prizes, 
348,  349. 

Destruction  of  neutral  prizes,  453-456. 

Devastation  in  warfare,  312,  314. 

Development  of  international  law,  37, 
etc. 

Development  of  neutrality,  383-389. 

Dignity  and  honor  of  the  state,  109-110. 

Diplomacy,  5,  6. 

Diplomatic  agents,  199-210;  appoint- 
ment and  reception  of,  199-202;  re- 
fusal to  receive,  200;  en  route  to  posts, 
201,  202;  reception  of,  201,  202;  rank 
and  classification  of,  202-204;  duties 
of,  204-206;  immunities  of,  206,  207; 
rights  and  privileges  of,  206-210;  im- 
munity from  criminal  proceedings, 
207,  208;  household  of,  208;  right  of 
inviolability,  208.-' 

Diplomatic  and  naval  services,  rela- 
tions of,  198,  199. 

Diplomatic  corps,  203-205. 

Diplomatic  immunities,  208-212. 

Diplomatic  intercourse,  197-199. 

Diplomatic  mission,  termination  of, 
212-213. 

Diplomatic  relations,  suspensions  of, 
283-285. 

Diplomatic  service  of  the  United  States 
confined  to  citizens,  199, 


INDEX 


607 


Distinction  between  state  and  govern- 
ment. 88,  89. 

Documents  carried  by  vessels  of  the 
United  States,  15G,  157. 

Dogger  Bank  case,  17,  53,  277. 

Domain,  public  and  private,  113,  114. 

Domicile,  179,  180;  as  to  aliens,  187, 
189;  of  students,  189;  in  naval  war, 
461. 

Don  Paciflco,  case  of,  288. 

Due  diligence  of  neutral  powers,  408, 
409. 

Duties  of  consuls,  220,  etc. 

Duties  of  a  sovereign  state,  97,  98. 

Ecuador,  48. 

Effect  of  recognition  of  belligerency,  82- 
84,  85;  upon  states  and  individuals, 
293-299. 

Effect  of  war,  upon  treaties,  264-268; 
upon  combatants  and  non-combat- 
ants, 300-305;  as  to  property,  SOS- 
SOS. 

Effective  blockades,  419,  421. 

Effects  of  outbreak  of  war  296,  297. 

Egypt,  67,  136,  242. 

Egyptians,  24. 

Ellenborough,  Lord  Justice,  97. 

Embargo,  288. 

Embassies  and  legations,  right  of  asy- 
lum in,  210-212. 

Emigration,  184. 

Enemy's  character  in  maritime  war- 
fare, 305,  346,  347,  461,  462,  474, 
478. 

Enemy's  merchant  vessels,  at  outbreak 
of  war,  297 ;  capture  of,  340-343 ;  de- 
struction of,  348,  349. 

England.     (See  Great  Britain.) 

Enlistment  acts,  386-389. 

Envoys  bearing  flags  of  truce,  327,  328. 

Equality  of  states,  62,  63. 

Equipment  of  vessels  of  war  in  a  neu- 
tral state,  403-409,  413. 

E.scape  from  capture  as  prisoner  of  war, 
320. 

Ethics,  international,  6,  7. 

Events  bearing  upon  international  law 
since  1909,  59. 

Exchange,  case  of,  159,  160. 

Exchange  of  prisoners,  322-324. 

Exclasion  of  aliens,  186,  187. 

Exemption  of  coast  flsheries  from  cap- 
ture, 343,  344. 

Exemption  of  convoy  from  search,  411, 
412. 

Exequatur  of  consuls,  225,  226. 

Expatriation,  182,  183. 

Expeditions,  hostile,  413,  415. 

Explosive  buUets,  310,  324. 

Expulsion  of  aliens,  187. 

Ext<-rritoriality,  188. 

Extinction  of  states  and  governments, 
91.  92. 

Extradition,  180-192;  of  political  cases, 
190-192;  of  deserters,  192,  193. 


False  colors,  use  of,  324. 

Fisheries,  Newfoundland,  59;  pearl,  of 
Ceylon  and  Persian  Sea,  127;  Bering 
Sea,  149-151;  North  Sea,  151;  on  the 
high  seas,  151. 

Fishing  vessels,  exemption  of,  343,  344. 

Flag,  transfer  of,  458,  460. 

Flags,  for  maritime  service,  152 ;  use  of, 
152. 

Flags  of  truce,  327,  328. 

Floating  mines  on  the  high  seas,  477, 
478. 

Florida,  the  case  of  the,  399. 

Foodstuffs,  305,  429,  430. 

Force  of  usage  and  custom,  2,  S,  14,  15. 

Forced  loans,  368,  369,  370. 

Forced  military  service  from  enemy, 
319,  325. 

Forces  of  the  state,  298. 

Foreign  consular  jurisdiction,  234.  235. 

Foreign  consular  systems.  232,  233. 

Foreign  flag,  transports  under,  166,  167. 

Foreign  ports  closed  in  time  of  war  and 
peace,  158. 

Foreign  sovereigns,  195,  197. 

Formation  of  states,  72,  etc.;  by  occu- 
pation or  colonization,  73,  74;  by 
attainment  of  civilization,  74,  75;  by 
division  of  a  state,  75;  by  combina- 
tion of  minor  states,  76. 

Fortifications,  310,  313.  319,  325,  S26. 

France,  33,  41,  43-49,  57,  68,  74,  76,  86. 
110,  138,  179,  180,  201,  213,  219,  232. 
245,  289,  300,  304,  338,  341,  359,  373. 
374,  375,  394,  453,  461,  476,  479. 

Franco-German  War,  49,  65,  76,  176, 
273,  304,  306,  313,  316,  338,  355,  370, 
371,  374,  375,  377,  378,  388,  402,  416. 

Franconia,  case  of,  9. 

Frankfort,  treaty  of,  375,  377,  378. 

Free  Ust  as  to  contraband,  4,  31. 

Freedom  of  the  high  seas,  148-152;  re- 
strictions of,  154. 

French  ordinance  of  1681,  18,  41. 

French  prize-courts  set  up  in  America, 
385. 

French  Revolution,  41,  43,  44,  384. 

French  rule  as  to  merchant  vessels,  168, 
169. 

Fuel  as  contraband,  430. 

Fuel  for  belligerent  vessels  of  war,  406, 
407. 

Fugitive  slaves  on  board  vessels  of  war, 
162,  163. 

Fuller,  Chief  Justice,  78. 

Fundamental  rights  and  duties  of  states. 
97.  98. 

Gallatin,  case  of,  209,  210. 

Camez,  case  of.  170,  171. 

General  Armstrong,  case  of  the,  399. 

GSnet,  M.,  in  the  United  States,  385. 

Geneva  arbitration  and  tribunal,  50,  51. 

Geneva  conventions  as  to  sick  and 
wounded,  1864-1869.  11,  .50,  310,  311, 
317.  324,  336,  345,  340,  45J    452. 


608 


INDEX 


Gentilis,  Albericvis,  32. 

Germany,  38,  45,  49,  51,  57.  63.  76.  117. 
118,  136,  179,  200,  210,  233,  245,  262, 
263.  290,  291,  304,  341,  359,  378.  384. 
388,  394,  412,  440,  461,  472,  476.  479. 

Goths  and  Vandals,  28. 

Government,  military,  365-372. 

Grades  of  consular  representatives,  223, 
224. 

Grades  of  diplomatic  representatives, 
203,  204. 

Great  Britain,  8,  9,  32,  42,  43,  44,  46,  47, 
52,  53,  57.  59,  68,  74,  76,  86,  91,  98, 
108,  116.  117,  118,  119,  122,  124.  126. 
129.  131.  134,  137,  138,  139,  140,  142, 
144,  148.  149.  151,  175,  179,  185,  186, 
187.  190.  200,  206,  207,  209.  249,  250, 
259,  274,  276,  277,  278.  284,  288.  290, 
291.  303,  338,  341,  352,  376,  384.  389, 
394.  407,  440,  447,  448,  453,  456,  467. 
476,  479;  neutrality  laws  of,  389. 

Great  Lakes,  as  boundaries,  122;  posi- 
tion of,  with  respect  to  the  United 
States,  122;  limitation  of  armaments 
upon,  124. 

Greece.  24.  25,  76,  88,  180,  275. 

Greeks,  24;  international  laws  and 
usages  of.  21. 

Grotius,  Hugo,  15,  16,  30,  32-35,  37-40. 
309.  350,  355;  his  predecessors,  30-32; 
his  successors,  38,  39. 

Guadalupe  Hidalgo,  treaty  of,  185. 

Guano  Islands,  158. 

Guatemala,  171,  173. 

Guerilla  troops,  312.  313. 

Gulfs  and  bays.  126. 

Hague  conventions.  11.  16.  17.  51,  53, 
64,  241,  243,  259,  260,  271-274,  276, 
279, 295, 302,  310,  311.  312,  318,  320- 
329.  343-345.  389-396,  400-409,  413, 
416,  451-468,  473,  475,  477-479. 

Hague  declarations,  54. 

Hague  Peace  Conference,  first.  52,  53, 
238.  240,  278;  second,  51,  53,  54,  55- 
67,  238,  276-279,  280,  281,  294-296, 
318-321,  389-394,'  404-409.  413,  416. 

Hague  tribunals.  124.  126,  280. 

Hay-Bunau-Varilla  treaty,  139,  143- 
145. 

Hay-Pauncefote  treaty.  127,  139,  140, 
141-143.  144,  145,  269. 

Head  of  the  state,  195,  196;  immunities 
of,  196,  197;  case  of  ex-President  Cas- 
tro,  197. 

Hebrews,  22,  23. 

Hcnfield,  Gideon,  case  of,  385,  386. 

Herzegovina,  269. 

High  seas,  definition  of  the,  147;  free- 
dom of,  148-151;  navigation  upon 
the,  150,  151 ;  collisions  on,  151 ;  juris- 
diction over  vessels  on  the,  152-154. 

Hill,  D.  J.,  6,  29. 

"  Historicus,"  views  of,  100. 

History  of  international  law,  19.  20. 

Holland  (Low  Countries,  Netherlands), 


35.  37.  40.  44.  45.  52,  57.  76,  80,  86; 

180.  253.  383.  384.  448.  476. 
Holy  AUiance,  45,  46. 
Honduras,  case  of  the,  170,  171. 
Hospital  ships,  345,  346. 
Hospitals,  military,  310.  317. 
Hostages.  314,  315,  370,  371. 
Hostile  expeditions,  413-415. 
Hostilities,  324-326;  outbreak  of.  294- 

297. 
Hot  pursuit,  128,  129. 
Hudson  Bay,  147. 

Identification  of  a  vessel  of  war,  153. 

Identity  of  vessels,  152. 

Immunities  of  foreign  sovereigns,  196, 

197;  foreign  vessels  of  war,  in  ports, 

158,   161;  of  diplomatic  agents  and 

consuls,  206-210,  228,  229. 
Immunity  from  arrest  on  board  vessels 

of  war.  161-165. 
Immunity    from    capture    of    private 

property  at  sea.  340-343. 
Immimity  of  political  offenders.  162. 
Implements  of  warfare  as  contraband, 

428,  429. 
Indemnities,  366-369,  377. 
Independence,    recognition   of,   85-88; 

see  Appendix  I. 
India,  British,  22,  69,  175. 
Indian  Ocean,  148. 

Inhabitants  of  acquired  territory,  378. 
Innocent  passage,  right  of,  128,  129. 
Institute  of  International  Law,  18.  127. 

133.  220.  221.  292,  356,  358. 
Instructions    for    the    armies    of    the 

United  States  in  the  field.  (See  Rules 
of  War  by  Lieber.) 

Insurgency,  state  of,  77-81. 

Insurgent  commvmities,  76.  77.  81. 

Insurgents  on  the  high  seas.  77-80. 

Intelligence  for  an  enemy,  transmis- 
sion of.  444-446. 

Intention  to  become  citizens,  declara- 
tion of,  181.  182. 

Intercourse,  of  nations,  earlyjhlstory  of, 
20.  21.  22;  between  states.  197.  etc.; 
right  of,  197,  198;  diplomatic,  197- 
199. 

International  comity.  4. 

International  commissions  of  inquiry, 
277,  278. 

International  'conferences  and  con- 
gresses. 238-241. 

■international  disputes,  judicial  settle- 
ment. 279-282;  see  also  Appendix  II. 

International  ethics,  6. 

International  law,  its  nature,  1 ;  origin, 
1-4;  term,  3;  definition,  4;  with  re- 
spect to  navy.  5,  40.  77-80.  82,  84. 
105-107,  108,  110,  124, 128-131,  132- 

134,  137,  141,  142.  144.  152-154,  155. 
156, 158-167,  171-173,  177,  178,  191- 
193,  204,  222,  224,  288-292,  293-299. 
300-308,  309-330,  332-353,  355-363, 
364-379,  380-397,  398-417,  41S-426, 


INDEX 


G09 


427-440,  442-456.  458-470,  471-479; 
compared  with  municipal  law,  7; 
has  judicial  sanction,  8;  as  part  of 
municipal  law,  8;  recognized  by  Con- 
stitution of  the  United  States,  9,  10; 
codification  of,  10,  11;  observance  of, 
11,  12;  its  formation,  14,  20;  author- 
ities, 11,  30-34,  38,  39  (see  list  of 
authorities  consulted);  original  mo- 
tives and  causes  of.  14;  sources  of, 
15-20;  its  histories,  20;  development 
of,  37,  etc.;  subjects  of,  61. 

International  law  situations  of  Unit«d 
States  Naval  War  College,  339,  340. 
353,  362,  363,  462,  463. 

International  police,  12,  13. 

International  private  law,  4. 

International  prize-court,  400,  401,  419, 
464,  466-468;  see  Appendix  III. 

International  state  policy,  5. 

International  treaties  and  agreements, 
16. 

Internment  in  neutral  territory.  392, 
393. 

Intcroceanic  canals,  136-139. 

Intervention.  100-103;  of  the  United 
States,  101,  102. 

Inviolability  of  neutral  territory,  390- 
396,  398-401. 

Ionian  Islands,  308. 

Irregular  combatants,  312,  313,  316, 
317. 

Italy,  10,  25.  49,  52,  57.  64.  72.  180. 
190,  200,  259,  266,  209,  290,  291,  340. 
356,  359,  375-472,  476,  477,  479;  and 
Turkey,  war  between,  59.  259.  304, 
375.  386,  388,  446,  447. 

Itata,  case  of,  129,  130. 

Japan,  53,  57,  75,  124,  183,  214.  304. 
341,  345.  349,  355,  359,  403.  407,  453, 
461,  476,  479. 

Juan  de  Fuca,  Strait  of,  122. 

Judicial  settlement  of  international  dis- 
putes, 279,  282;  see  Appendices  II, 
III. 

Jurisdiction,  in  case  of  colonial  protect- 
orate, 68.  117,  118;  right  of,  112; 
over  its  own  territory,  112;  over 
aerial  space,  112,  357,  358,  359;  over 
bays,  125,  126;  over  territorial  waters 
and  ves.sels  therein,  125,  126,  128; 
beyond  the  marine  league,  129,  130; 
over  straits,  130-134;  over  rivers, 
134-136;  over  interocoanic  canals. 
136-139;  over  adjacent  seas  during 
Middle  Ages,  148;  over  open  sea,  148; 
over  cases  arising  from  salvage  or  col- 
lision, 151;  over  v&ssels  on  the  high 
secis,  etc.,  152;  over  war-sliips  and 
mercliantmen,  153;  over  pirates,  154, 
155;  in  foreign  territory,  158,  107;  over 
aliens,  185,  186,  187-180;  immunities 
from,  of  head  of  the  state,  196.  197; 
of  diplomatic  agents,  206-210;  over 
Buite.  208.  209;  of  consuls  in  Africa 


and  the  Orient,  229,  231,  234,  235; 
of  national  prize-courts.  463-466;  of 
International  prize-court.  466-468. 

Jurists,  writings  of,  18. 

Jus  belli,  of  the  Romans,  27. 

Jus  fctiale,  26,  27. 

Jus  gentium,  26,  27. 

Jus  sanguinis,  178. 

Jus  soli,  178. 

Keilcy,  Mr.,  the  case  of,  200. 

Kiao-Chau,  117. 

Kiel,  49,  136. 

King's  chambers,  131. 

Knight-Coimnander ,  case  of,  455. 

Korea,  as  theatre  of  war,  4,  53. 

Koszta,  Martin,  case  of,  177,  178, 

L'agreation,  200. 

Lake  Michigan,  134. 

Lakes,  134;  boundaries,  122;  interna- 
tional, 122;  inland,  as  territorial 
waters,  134. 

Land  domain,  113,  114. 

Landlocked  seas,  134. 

Language  of  diplomatic  conferences, 
240. 

Latin-American  states,  and  the  Mon- 
roe Doctrine,  46,  47;  recognition  of, 
87;  and  citizcnsliip,  179,  182,  183; 
right  of  asylum  in,  212;  and  arbitral 
court,  281. 

Law  of  nations,  3. 

Laws  of  war,  in  general,  309,  310;  mod- 
ern development  of,  310-312;  and 
the  private  citizen,  312-315;  on  land, 
315,  etc.;  at  sea,  333,  334. 

Leased  territory,  117. 

Legality  as  a  ground  of  intervention; 
100. 

Legations,  the  right  of,  197.  198;  im- 
munities of.  206-210;  right  of  asylum 
in.  210-212. 

Leges  Wisbuensis,  10. 

Les  Traites  des  Dames,  200. 

Letters  of  credence,  201,  202. 

Letters  of  marque,  335. 

Levies  en  masse,  316. 

Liberia,  65,  74. 

Licenses  to  trade,  304. 

Lieber.  Dr.  Francis  (rules  of  war).  49, 
203.  300,  301,  313,  314,  317,  318,  324. 

Loans,  by  neutrals  to  belligerents,  395. 

L'Ocean,  case  of,  167,  169. 

London,  treaty  of,  1871.  51.  124.  132, 
133. 

London  Naval  Conference  of  1909  (see 
also  Declaration  of  London),  57,  58; 
on  convoy, 44;  on  blockade,  418-426; 
on  contraband,  427-440;  sanctions 
doctrine  of  continuous  voyage,  433; 
on  unneutral  service,  442-447;  on  de- 
struction of  neutral  prizes,  453-456; 
on  transfer  of  flag,  458-461 ;  rules  of, 
on  enemy  character,  401,  462. 

Loss  of  territory,  modes  of,  91,  92. 


610 


INDEX 


Louis  XIV  of  France,  34,  35.  39. 
Louisiana.  115.  116.  201,  252.  379. 
Luxemburg,  65.  66,  391.  393;  neutral- 
ization of,  66. 

Machiavellian  diplomacy.  31. 

McKinley.  81,  84. 

Madagascar,  221,  264. 

Magellan,  Straits  of,  122,  131,  143,  176. 

Mail  steamers,  exemption  from  service, 
444. 

Mail-bags  during  war,  444. 

Malay  Peninsula,  119. 

Manchuria,  124. 

Manila,  216,  227,  255.  256. 

Manouba,  case  of.  446.  447. 

Manu.  Code  of,  22. 

Marcy,  Secretary.  48,  177,  178,  286. 

"Mare  Liberum,"  148,  149. 

Marianna  Flora,  case  of,  156. 

Marine  League,  125,  126-131;  decision 
in  Atlantic  fishery  question,  126; 
right  of  innocent  passage  through, 
128;  exercise  of  authority  beyond, 
129,  130;  in  case  of  canals,  137,  142. 

Maritime  capture,  question  of  domicile 
and  nationality,  474-475. 

Maritime  flag  of  states,  152. 

Maritime  international  law,  rules  of,  57, 
58. 

Maritime  warfare,  in  general,  332,  etc.; 
exemption  in  capture,  34,  346;  un- 
settled questions  in,  471,  etc. 

Marriage,  effect  of,  on  nationality,  184. 

Marshall,  Chief  Justice,  9,  10,  17,  68, 
69.  97.  103,  158,  159,  160,  167,  409. 

Marshals  of  consular  courts,  224. 

Matters  necessary  to  the  validity  of 
treaties,  245,  246. 

Maximilian,  Archduke,  101. 

Measures  of  constraint  short  of  war, 
283,  etc. 

Mediaeval  church,  influence  of,  in  Mid- 
dle Ages,  28,  29. 

Mediation,  as  a  mode  of  settling  inter- 
national differences,  271-274;  Hague 
conferences  on,  272,  273;  examples  of, 
274. 

Mediterranean,  the,  10,  133,  136,  147. 

Men-of-war,  salutes  by,  110. 

Merchant  vessels,  liable  to  jurisdiction 
of  bordering  state,  128;  passage  of, 
through  territorial  waters,  128;  al- 
lowed to  pass  Turkish  straits,  132; 
jurisdiction  over,  on  the  open  sea  and 
in  foreign  waters,  152-154;  e\idences 
of  nationality,  etc.,  156,  157;  papers 
of,  156,  157;  in  foreign  ports,  status 
of,  167-173;  right  of  asylum  as  ap- 
plied to,  169-173;  status  of  enemy,  at 
the  outbreak  of  hostilities,  297,  307; 
regulations  regarding  the  crews  of, 
when  captured,  336;  conversion  of. 
Into  war-ships,  337-340;  capture  of,  in 
war-time,  340,  341.  343-345;  when 
subject  to  capture,  340-343;  proce- 


dure of  capture,  347,  348;  enemy,  de- 
struction of,  348,  349;  the  right  of 
visit  and  search  of,  349-350,  409-412; 
engaged  in  imneutral  service,  442- 
447. 

Mexico,  101,  216,  264,  284,  359,  388; 
gulf  of.  147,  148. 

Mid-channel,  as  boundaries,  121. 

Middle  Ages,  2,  20,  27-30,  148,  197,  309. 

Military  attaches,  204. 

Military  occupation,  364,  etc. ;  its  mean- 
ing, 364-366;  authority  of,  366,  367; 
limitations  to  authority,  367-372. 

Military  service,  effect  of,  on  expa- 
triation, 154;  resident  aliens,  not  lia- 
ble to,  188. 

Military  servitudes,  124. 

Mines,  use  of  floating,  in  war,  337. 

Minister  of  foreign  affairs,  duties  of, 
195,  190. 

Minister,  resident,  203. 

Ministers,  public,  in  third  countries. 
201;  relations,  defined  at  Congress 
of  Vienna,  202-205;  clcissiflcation  of, 
203,  204;  dismissal  of,  205,  206;  im- 
munities of,  206-210;  recall  of,  212, 
213. 

Mississippi  River,  115,  134,  135. 

Mi.xed  commissions,  278;  of  the  Dan- 
ube. 278. 

Modem  development  of  the  laws  of 
war,  310-312. 

Modification  of  treaties,  268. 

Mohican,  case  of,  165-166. 

Monaco,  65. 

Monroe  Doctrine,  enunciation  of,  46, 
47;  statement  and  history  of,  46;  not 
international  law,  47. 

Montenegro,  76,  88.  124,  479. 

Montesquieu.  24. 

Montezuma,  case  of,  79,  80. 

Morocco,  68,  148. 

Morris,  Gouverneur,  case  of,  212,  213, 
214. 

Most^favored-nation  clause,  in  treaties, 
260,  263. 

Mountains,  as  natural  boundaries,  121. 

Municipal  or  state  law,  8,  9;  compared 
with  international  law,  7,  a  part  of 
the  law  of  England,  9;  international 
law  a  part  of,  9 ;  of  the  United  States, 
9. 

Mtinster,  treaty  of,  38,  253. 

Napoleon  I,  43,  44,  244,  246. 

Napoleon  III,  101,  195-201,  399. 

Napoleonic  wars,  the,  43,  44.  99,  588. 

National  prize  tribunals,  463,  464. 

Nationality,  of  ships,  153,  154;  in  the 
United  States  (see  also  Naturaliza- 
tion), 175,  178,  179,  190;  loss  of 
British,  175;  principle  of,  175;  as  ap- 
plied to  native-born  citizens,  178- 
180;  in  France,  179,  180;  loss  of,  in 
Other  countries,  179;  of  children  bom 


INDEX 


611 


during  a  voyage.  179,  180;  as  to  mer- 
chant seamen,  184,  185;  in  case  of 
cession  or  conquest,  378. 

Native  princes  of  British  India,  68, 
69. 

Naturalization,  181-185;  in  the  United 
States,  175,  181-184;  in  Germany, 
181-184;  in  Great  Britain,  181-184; 
meaning  of,  181;  regulated  by  mu- 
nicipal law,  181;    treaties  on,  183. 

Nature  of  international  law,  1. 

Nature  of  treaties,  243. 

Naval  war  code  of  1900,  339,  340,  416, 
455,  462. 

Naval  War  CoUege,  353.  362,  363,  462. 
463. 

Navigation,  of  the  Mississippi,  134,  135; 
freedom  of,  as  applied  to  rivers,  135- 
136;  of  the  Congo  and  the  Niger,  135; 
of  the  Danube,  135;  of  the  Rhine, 
135;    of  the  Scheldt,  135. 

Navy  regulations,  163. 

Negotiations,  237,  238. 

Nelson  at  Copenhagen,  105. 

Nereide,  case  of,  9,  10. 

Netherlands,  the.     (See  Holland.) 

Neutral  ports  and  waters,  inviolability 
of,  398-401;    as  base  of  operations, 

401,  402;  admission  of  belligerent 
war-ships  into,  404-409;  duration  of 
sojourn  in,  405-409;  number  of  bel- 
ligerent war-ships  allowed  in,  at  one 
time,  405 ;  repairs  of  belligerent  war- 
ships in,  405;  coaling  of  belligerent 
war-ships  in,  407;  prizes  in,  407;  de- 
tention of  vessels  in,  408;  equipment 
of  belligerent  vessels  in,  408,  409; 
cannot  be  blockaded,  419. 

Neutral  powers,  in  naval  war,  54;  re- 
strictions on,  in  aerial  warfare,  361- 
363;  rights  and  duties  of,  in  land  war- 
fare, 389,  etc.;  internment  in,  392, 
393;  passage  of  sick  and  wounded, 
393,  394;  furnishing  of  supplies  by, 
395;  in  maritime  warfare,  398,  etc.; 
obligations  with  respect  to  waters, 
402-409. 

Neutral  prizes,  destruction  of,  453,  457. 

Neutral  rights  and  duties,  in  case  of  in- 
surgency, 79,  80;  of  belligerency,  82; 
conventions  regarding,  389,  etc.;  in 
land  warfare,  389,  396. 

Neutral  states  created  by  war,  380,  381. 

Neutral  territory  and  waters,  inviola- 
bility of,  390-394,  401;  prize-courts 
in,  401;  as  a  base  of  operations,  401, 
402 ;  fitting  out  or  arming  of  ships  in, 

402.  403.  406,  413. 

Neutral  water,  base  of  operation,  401, 
402. 

Neutrality,  armed.  42,  43;  early  rules 
of,  42,  43;  principles  of.  381-383;  his- 
tory of.  383.  etc. ;  obligations  of.  390, 
391,  393;  proclamations  and  declara- 
tions of.  390.  397.  400  (.see  Appendix 
V);   notation  of,  398;   conversion  of 


merchantmen  !n  neutral  ports  a  vio- 
lation of,  476. 
Neutrality  laws  of  the  United  States, 

18,  386-389. 
Neutralized  states,  65-67. 
Neutrals,   not  expected   to  imdertake 

duties    beyond     their    powers,    39; 

opening   of   closed    trade    to,    449- 

451. 
New  Orleans,  134. 
Newfoundland,  59. 
Newfoundland  coast,  4,  59. 
Nicaragua.  170.  171. 
Nimeguen.  peace  of.  39. 
Non-combatants,  302-305. 
Non-contraband  articles.  431-433. 
Non-intercourse    between    belligerenta 

(see  Trading  with  the  enemy).  304. 
North  American  Indians,  68,  69. 
Norway,  45,  67,  75,  76. 
Notification,  in  case  of  bombardment, 

325,  326;  in  case  of  occupation,  366; 

in  blockade,  421-423;  in  contraband. 

430,  431. 
Nova  Scotia,  131. 

Occupant,  authority    of  the  military, 

366.  367;  results  to  the.  372.  377. 
Occupation,  as  a  mode  of  acquiring  ter- 
ritory, 73,  74;  of  a  port  as  means  of 
reprisal,  288;  distinguished  from  con- 
quest and  cession.  377,  378. 

Occupation,  military.  364,  etc.;  defini- 
tion of,  364;  Hague  regulations  on, 

367,  etc.;  hostages,  370,  371;  under 
laws  of  humanity,  372;  distinguished 
from  conquest.  377;  Hague  wish  re- 
specting foreigners,  395. 

Open  sea.      (See  High  seas.) 

Opening  to  neutrals  of  a  trade  closed  In 
peace,  449-451. 

Operation  of  treaties,  253-255. 

Operations,  military,  compulsion  on 
population  of  occupied  territory  to 
take  part  in,  prohibited,  368. 

Opinions  of  statesmen,  18. 

Ordinance  of  France,  41,  42. 

Orient,  the,  consular  jurisdiction  In; 
231,  232. 

Origin  of  states,  72. 

Orinoco  River,  135. 

Ortolan,  5. 

Ottoman  Empire.     (See  Turkey.) 

Outbreak  of  war,  effect  of.  (See  Ef- 
fects of  outbreak  of  war.) 

Pacific  blockade.  289-292;  of  Crete, 
290,  201;  of  Zanzibar,  290;  attitude 
of  the  United  States  concerning,  291; 
of  Venezuela.  291. 

Pacific  Ocean,  the,  402. 

Palatinate,  devastation  of,  35. 

Panama,  OS.  102.  145.  264. 

Panama  Canal.  139-144;  conventional 
rules  governing,  141,  142;  right  to 
fortify,  143. 


G12 


INDEX 


Papacy,  the,  or  Pope,  64,  65;  influence 

of,  in  Middle  Ages,  2S,  29;  diplomatic 

agents  of,  64;  not  a  sovereign  state, 

64;  otlier  agents  to  the,  213,  216. 

Paper  and  paper-making  materials  on 

free  list,  431. 
Papers  carried  by  merchant  vessels,  156, 
157. 

Paquete  Habana,  case  of,  8,  9. 

Paris,  American  minister  in,  176. 

Paris,  Declaration  of.  (See  Declara- 
tion of  Paris.) 

Paris,  treaty  of,  1763,  41;  1898,  255; 
1856,  273. 

Parlement  Beige,  case  of,  166. 

Parole,  in  case  of  interned  troops,  320, 
321;  breach  of,  321;  release  on,  321; 
terms  of,  321 ;  in  case  of  shipwrecked 
taken  on  board  a  neutral  war-ship, 
453. 

Part  or  semi-sovereign  states,  67. 

Parties  to  a  treaty,  244. 

Passage  through  neutral  territory  of 
prisoners  of  war  and  wounded,  394. 

Passports,  176,  231. 

Peace,  treaties  of,  373-378. 

Peace  of  God,  30. 

Peace  of  Utrecht,  41. 

Peace  of  Westphalia,  37-39,  72. 

Pearl  fisheries,  127. 

Persia,  231. 

Peking,  102,  250. 

Penalty  of  carriage  of  contraband,  436- 
440. 

Persians,  the,  hospitality  of,  24. 

Persian  Gulf,  127. 

Pharaoh,  24. 

Philippine  Islands,  158,  175,  215,  216, 
254,  255. 

Phoenicians,  the,  barbarity  of.  In  war- 
fare, 22,  24. 

Piedmont  (Sardinia  also),  45,  384. 

Pilcomayo,  case  of,  191,  192. 

PiUage,  326. 

Piracy,  154,  155;  insurgent  vessels  as  a 
nile  do  not  commit,  78,  79;  definition 
and  marks  of,  154,  155;  by  municipal 
law,  155;  jurisdiction  over,  155. 

Poland,  division  of,  41. 

Political  offences,  extradition  for,  190. 

Political  refugees,  the  so-called  right  of 
asylum  as  applied  to,  162,  169-173, 
210-212. 

Pope  of  Rome,  148. 

Porcupine  River,  135. 

Port  Arthur,  117. 

Porto  Rico.  175,  253. 

Ports,  closed  to  men-of-war,  158;  juris- 
diction over  public  vessels  in,  158- 
167;  over  private  vessels  in,  167-173. 

Portsmouth,  treaty  of,  274. 

Portugal,  45,  148,  384. 

Powder  as  contraband,  428,  430. 

Precedence  of  consuls,  223-225. 

Predecessors  of  Grotius,  30-32. 

Pre-emption  of  contraband,  440. 


Preliminaries  of  peace,  375. 

Prescription,  as  a  mode  of  acquisition 
of  territory,  115,  116. 

President  of  the  United  States,  with 
respect  to  e.xportation  of  arms,  388; 
immunities  of  the,  195;  as  treaty- 
making  power,  245,  248,  250. 

President  Polk,  252. 

Prisoners  of  war,  317-324;  treatment  of, 
in  Greece,  25;  treatment  of,  318-320; 
internment  of,  319;  their  labor  and 
maintenance,  319,320;  their  punish- 
ment and  escape,  320 ;  their  release  on 
parole,  320,  321;  bureau  of  informa- 
tion for.  323 ;  relief  societies  for,  323. 

Private  individuals  in  war,  312,  315. 

Private  property  at  sea,  its  capture  and 
proposed  immunity,  341-343. 

Privateering,  48,  49 ;  abolition  of,  48. 

Prize-court,  international,  466-468; 
see  Appendix  III. 

Prize-courts,  national,  decisions  of,  17; 
jurisdiction  of,  463-466. 

Prize-courts  on  foreign  territory,  401. 

Prizes,  destruction  of  enemy,  348,  349; 
disposition  of,  348,  463-465;  in  neu- 
tral ports,  398-399;  capture  of,  in 
neutral  waters,  400,  401 ;  spoliation  of 
papers  of,  412,  413;  destruction  of 
neutral.  453-456 ;  sent  in  for  adjudica- 
tion, 462,  463;  passengers  in,  466;  res- 
toration of,  468. 

Procedure  of  the  capture  of  merchant- 
men, 347,  348. 

Proclamation  of  neutrality,  83,  396, 
397.     (See  Appendix  V.) 

Proof  of  destination  of  contraband,  433, 
434. 

Property,  private,  circumstances  under 
which  seizure  or  destruction  is  per- 
missible, 305,  306;  not  to  be  seized, 
except  in  case  of  necessity,  305,  306 ; 
confiscation  of,  forbidden,  306;  still 
subject  to  capture,  307;  movement 
for  abolition  of  capture  at  sea,  341; 
reasons  in  favor  of  the  retention  of 
the  right  of  capture,  342;  at  sea,  472. 

Property,  public  or  state,  96,  113-119. 

Protection,  of  nationals  abroad,  175, 
176-178;  in  Turkey,  176,  177;  of 
aliens,  176;  to  foreign  nationals,  176. 

Protectorates,  colonial,  117,  118;  inter- 
national, 67,  68. 

Protocols,  of  the  United  States  in  in- 
ternational prize-court  convention. 
(See  Appendix  III.) 

Provisions  (foodstuffs),  supply  of,  to  bel- 
ligerents, becomes  contraband,  429, 
433-435.     (Also  see  Appendix  IV.) 

Prussia,  41,  45,  65,  66,  99,  263  (also  see 
Germany) ;  Holy  Alliance,  45,  46. 

Prussian  volunteer  fleet,  338. 

Puffendorf,  38. 

Pursuit,  in  blockade,  424,  425 ;  no  right 
of,  in  peace  beyond  marine  league, 
429,  430. 


I 


INDEX 


613 


Quallflcatlons  of  belligerents,  315,  316. 
Quarantaine  Ic  Roy,  30. 
Quarter,  in  Greece,  25;  refusal  of,  for- 
bidden, 324. 

Radius  of  action,  in  blockade,  424,  425. 

Bail  way  material,  of  neutrals,  396;  as 
contraband,  430. 

Rank,  of  states,  differences  in,  99;  of 
diplomatic  ofBcials,  202-204. 

Ransom,  350. 

Ratification  of  treaties,  247,  249,  250. 

Rebellion  contrasted  with  war,  381. 

Recall,  of  ministers,  212,  213;  of  con- 
suls, 226,  227,  233. 

Recapture  of  prizes,  349. 

Receipts,  in  case  of  contributions  and 
requisitions,  368,  369. 

Recognition,  of  insurgency,  77-81  (Ap- 
pendix I);  of  belligerency,  81-85  (Ap- 
pendix I);  of  independence,  85-88; 
of  new  states,  85-88 ;  of  new  govern- 
ments, 91. 

Region  of  war,  332. 

Relief  societies,  for  prisoners  of  war, 
323. 

Repairs,  of  belligerent  war-ship  in  neu- 
tral ports,  405,  406. 

Reparation  for  right  of  angary,  415,  416. 

Repatriation  of  prisoners  of  war,  323. 

Reprisals  in  general  in  peace,  286-289. 

Reprisals  in  peace,  286-289;  in  war, 
329,  330. 

Requisitions,  303,  307,  367,  368.  369. 
370. 

Reservists,  cases  of,  414. 

Residence,  effect  of,  upon  domicile,  187, 
188;  immunity  of,  in  case  of  public 
ministers  and  sovereigns,  208. 

Resistance  to  search,  etc.,  349. 

Respect  for  the  dignity  and  honor  of 
the  state,  109,  110. 

Retaliation,  329,  330. 

Retonsion,  285,  286. 

Revolution,  American,  84,  433. 

Revolution,  French,  43,  44,  384. 

Rhine,  the  freedom  of,  135. 

Right  of  asylum.  In  Spain,  211,  212;  in 
Spanish  America,  212;  in  legations 
and  embassies,  210-212. 

Right  of  independence  of  states,  98-100. 

Right  of  innocent  passage,  128,  129. 

Right  of  legal  equality,  98. 

liio  do  Janeiro,  80. 

Rio  de  la  Plata,  135. 

Rio  Grande,  101. 

Rivers,  134-130;  navigation  of,  134- 
130;  international,  134-130. 

Romans,  25-27;  intercourse  and  laws 
of  the,  21,  25,  26,  27. 

Roosevelt,  ox-President,  216,  274. 

Rule  of  the  war  of  1756,  42,  449-451. 

Rules  governing,  states  in  respect  to 
aliens.  18.5-187;  the  practice  of  the 
United  States  in  respect  to  aliens, 
186. 


Rules  of  the  treaty  of  Washington  of 

1871,  50. 
Rumania,  76,  116,  133. 
Russell,  Earl,  83,  84. 
Russia,  42,  44,  45,  52,  53,  57,  74,  76,  99. 

124,  149,  180,  227,  243,  262,  277,  341. 

359,  361,  476,  479. 
Russo-Japanese  War,  138,  304,  317,  337, 

339,  345,  361,  388,  399,  402,  406, 453- 

456,  478. 
Russo-Turkish  War  of  1877.  138,  313, 

375,  407. 
Ryswick,  peace  of.  39. 

Sackville-West,  case  of,  205,  206. 

Safe-conducts,  granting  of,  350. 

St.  Lawrence  River,  135. 

St.  Petersburg,  51,  52. 

Salutes,  etc.,  5,  110. 

San  Domingo,  261. 

San  Marino,  65. 

Saracens,  the,  28. 

Sardinia,  72,  74. 

Savoy,  72. 

Scheldt,  the,  freedom  of  navigation 
upon,  135. 

Schleswig-Holsteln  War,  49. 

Seacoast,  10. 

Seamen  as  citizens  on  American  ves- 
sels, 185. 

Selden,  John,  40. 

Self-preservation,  rights  of,  103-109. 

Semi-sovereign  states,  67,  68. 

Semmes,  Captain,  49. 

Serrano,  Marshal,  case  of,  211. 

Servitudes,  state,  123-126. 

Shanghai,  China,  235. 

Shenandoah,  Ccise  of  the,  402. 

Sheridan,  General,  devastations  of, 
during  Civil  War,  314. 

Ships' papers,  156, 157;  in  case  of  search, 
347,  348;  in  case  of  capture,  348,  462; 
in  case  of  destruction  of  prizes,  349, 
454,  455;  proof  in  case  of  contraband, 
433,  435,  436. 

Shipwrecked,  the.  In  maritime  warfare, 
451-453. 

Slam,  88,  231. 

Sick  and  wounded,  the,  treatment  of, 
in  land  warfare,  310,  317,  326;  treat- 
mentof,  in  maritime  warfare, 336, 345; 
care  of,  by  neutral  powers,  393-394. 

Sieges,  rules  of,  in  land  warfare,  326. 

Singapore,  158. 

Slaves,  so-called  right  of  asylum  as  ap- 
plied to,  101. 

Slave-trade,  the.  (See  the  African  slave- 
trade.) 

Sojourn,  in  neutral  ports,  401-409. 

Sotelo,  case  of,  109,  170. 

Soule,  Mr.,  case  of,  201. 

Sound  dues,  133,  134. 

Sources  of  international  law,  15-20. 

South  African  ropul)lics,  53,  74,  304. 

South  American  states.  (See  Latin- 
American  states.) 


614 


INDEX 


Sovereigns,  Immunities  of,  195-197. 

Sovereignty,  as  an  essential  character- 
istic of  states,  63;  limitations  as  ex- 
ternal, 65-66 ;  neutralization  a  restric- 
tion on  external,  65,  66;  succession  of, 
95 ;  over  vessels,  152 ;  of  the  air,  357- 
359. 

Spain,"  37,  40,  45,  46,  48,  57,  78.  84,  87, 
96,  102,  107,  108,  116,  180,  185,  211, 
221,  250,  253,  297,  313,  386,  476. 
479. 

Spanish-American  colonies  (Latin- 
American  colonies),  46,  47,  87,  387. 

Spanish-American  states  (Latin-Ameri- 
can states),  59.  86,  87,  395. 

Spanish- American  War.  51,  52,  78,  313, 
388,  420,  473,  474. 

Spanish-American  wars  of  independ- 
ence, 387. 

Sparta,  25. 

Spheres  of  influence  or  interest,  118, 119. 

Spies,  326.  327. 

Spoliation  of  papers,  412,  413. 

State  servitudes,  123-125. 

States,  sovereign,  as  subjects  of  inter- 
national law,  61;  definition  of,  61; 
classification  of,  61,  etc.;  essential 
characteristics  of,  61,  62,  73;  equal- 
ity of,  62,  63,  98,  99;  not  subject 
to  international  law,  63;  neutral- 
ized, 65,  66;  protected,  67;  semi- 
sovereign  or  part-sovereign,  67 ;  origin 
and  existence  of,  72;  formation  of, 
72-77;  formation  of,  by  occupation 
or  colonization,  73;  recognition  of 
new,  85-88,  Appendix  I;  continuity 
of,  88,  89;  extinction  of,  91;  succes- 
sion of,  94-97 ;  ownership  of  property, 
96,  97,  112-119;  fundamental  rights 
and  duties  of,  97 ;  right  of  independ- 
ence, 98,  99;  right  of  self-preserva- 
tion of,  103-109;  dignity  and  honor 
of  the,  109.  110;  jurisdiction  of,  112; 
jurisdiction  over  their  own  territory, 
112;  territorial  jurisdiction  of,  112, 
etc.;  right  of  holding  and  acquiring 
property,  113-119;  boundaries  of, 
119-123. 

Status  of  enemy  merchant-vessels  In 
foreign  ports,  297,  340,  343,  473. 

Stowell.  Lord  (Sir  William  Scott).  17. 
115. 

Straits,  as  boundaries,  122,  123;  as 
territorial  waters,  130-132;  innocent 
use  of,  by  foreign  merchantmen,  131, 
134. 

Straits  of  Dardanelles  and  Bosphorus, 
131-134. 

Suarez.  Francisco,  31. 

Subig  Bay,  in  the  Philippines,  158. 

Submarine  cables  in  time  of  war,  351- 
353,  371. 

Submarine  mines,  convention  relating 
to,  337 ;  use  of,  337. 

Succession  of  states,  94-97. 

Successors  of  Grotius,  38,  39. 


Suez  Canal,  137-139, 143;  conventional 

rules  governing,  137,  138,  142. 
Suite     of    sovereign     and     diplomatic 

agents,  immunities  of,  206,  208. 
Supreme  Court  of  the  United  States,  9, 

63,  84.  278,  279,  280,  400,  415,  463. 
Surrender,  328. 
Suspension  of  diplomatic  relations,  283- 

285. 
Suspensions  of  arms,  328,  329. 
Suzerainty,  states  under,  67. 
Sweden.  45,  74,  75,  76,  148,  384. 
Switzerland,  45,  65,  66,  176.  179.  381; 

neutralization  of,  66. 

Taft,  W.  H.,  mission  of,  215,  216. 
Tartar,  case  of  transport,  166,  167. 
Taxes,  exemption  from,  in  case  of  diplo- 
matic agents,  210;  in  case  of  consuls, 
228;   in  case  of  military  occupation. 
367. 
Termination  of  war,  372-374. 
Territorial  waters,  125,  126. 
Texas,  264. 

Thirty  Years'  War,  the,  29,  33.  37,  38. 
Three  Friends,  case  of  the,  78. 
Three-mile  limit.     (See  Marine  league.) 
Torpedoes,  use  of,  in  war,  337. 
Trading  with  the  enemy,  304. 
Transfer  to  neutral  flag,  458-460;    In 

transitu,  459. 
Treaties.     (See  also  Agreements,  Con- 
ventions,   and  International   confer- 
ences and  congresses.) 
Aix-la-Chapelle,  202,  297. 
Amiens,  41. 

BerUn,  of  1878,  116,  238. 
Chile  and  the  Argentine  Republic, 

191. 
Clayton-Bulwer,  98,  139,  140,  142. 
Constantinople,  127. 
Frankfort,  375,  378. 
Ghent.  376. 

Guadalupe  Hidalgo,  185. 
Hay-Bunau-VariUa,  143-145. 
Hay-Pauncefote,     127,     141-143. 

145. 
Holy  Alliance.  45,  46. 
Jay  Treaty,  276. 
Panama,  of  1846,  145. 
Paris,  of  1763,  41;  of  1856,  47,  48, 

74,  238. 
Spain  and  the  United  States,  116, 

117,  254. 
United  States  and  Italy,  1871, 340. 
Utrecut,  41,  238. 
Vienna  (also  Congress  of  Vienna), 

44,  45,  238. 
Washington,  of  1871,  135. 
Westphalia,    16.   37,   38.  72;    also 
Peace  of  Westphalia. 
Treaties,  between  states,  16,  17;   as  a 
source  of  international  law,  18;   defl- 
nition  and  meaning  of,  242;  early  ex- 
istence of,  242 ;  nature  and  classifica- 
tion of,  243,  244;  parties  to,  244,  245; 


INDEX 


615 


conditions  for  validity  of,  245,  246; 
matters  necessary  to  the  vjilidity  of, 
245,  246;  form  and  ratification  of, 
246-250;  enforcement  of,  250-253; 
and  the  Congress  of  the  United 
States,  252;  operation  of,  253-255; 
Interpretation  of,  257-260;  favored- 
nation  clause  of,  260-263;  termina- 
tion of.  263,  264;  effect  of  war  upon, 
264-268;  abrogation  of,  268.  269; 
of  peace,  374-376;  effects  of  treaties 
of  peace,  376,  377. 

Treaty  of  peace  of  Spanish-American 
War.  254.  255. 

Treaty-making  power  of  the  United 
States.  245;  of  France.  245;  of  Ger- 
many, 245. 

Trent  affair.  447-449. 

Troppau  protocol,  45. 

Tunis,  68. 

Turkey,  74-76,  124,  131-133,  136,  144, 
176,  183,  244;  admitted  to  society  of 
nations,  74. 

Unilateral  acts,  &s  evidence  of  interna- 
tional law,  18. 

United  Provinces.  (See  Holland  and 
the  Netherlands.) 

United  States,  neutrality  laws  of,  18; 
Instructions  for  the  government  of 
its  armies.  18.  49 ;  approves  principles 
of  armed  neutrality,  43;  the  main 
champion  of  neutral  rights.  44;  the 
Monroe  Doctrine,  46,  47,  55,  56,  91; 
and  the  Declaration  of  Paris,  48 ;  and 
the  affair  of  the  Trent,  49;  violates 
neutrality  during  Civil  War,  49;  and 
the  Alabama,  49,  51 ;  and  the  Geneva 
tribunal,  51;  and  The  Hague  confer- 
ences, 52.  53;  and  the  Declaration 
of  London,  57,  58;  and  arbitration 
treaties,  59;  as  to  Newfoundland 
fishery  disputes,  59,  124,  126;  and 
North  American  Indians,  68,  69; 
Department  of  State,  69,  78,  80,  96, 
140,  141,  178,  248,  249,  385;  Con- 
gress, 69,  81,  150,  176,  386-388; 
and  occupation  of  territory,  73;  Presi- 
dent of  the,  81,  84,  387;  and  the 
Civil  War  of  18G1-1S05,  83-85;  recog- 
nition of  independence  of,  86,  88;  and 
the  Spanish-American  colonies  and 
states,  86,  87,  99,  124.  387;  and 
Texas,  91;  and  Maximilian,  91,  101; 
and  acquisition  of  territory,  95,  112, 
116;  and  the  Cuban  debt.  90;  inter- 
ventions of,  101-102;  in  the  case  of 
the  Caroline,  104,  105;  and  bound- 
aries, 119,  120;  and  the  Great  Lakes, 
122;  claims  Delaware  and  Chesa- 
peake Bays.  126;  in  the  case  of  the 
Itata.  129,  130;  and  the  Sound  dues, 
134;  and  the  navigation  of  the  Mls- 
Bisslppl,  134;  and  the  Panama  Canal, 
130-145;  protests  against  Russian 
claim  to  Bering  Sea,  149;    and  the 


Bering  Sea  controversy,  149-151; 
and  the  African  conferences.  154; 
and  the  slave-trade.  155.  163;  and 
the  G&mez  affair,  170,  171;  and  the 
Barrundia  affair.  171-173;  and  the 
Philippines,  175;  and  passports.  176; 
in  the  Koszta  case,  177,  178;  native- 
bom  citizens  of,  178-181;  declaration 
of  intention  in,  181-182;  naturalized 
citizens  of,  181-185;  champions  right 
of  expatriation,  182;  naturalization 
treaties  of.  183;  persons  eligible  for 
naturalization,  183,  184;  exclusion 
of  Chinese  by,  186;  immigration  laws 
of.  186;  right  of  aliens  in,  188;  extra- 
dition laws  and  treaties  of,  189-193; 
and  the  recall  of  ministers,  199,  200; 
and  the  dismissal  of  ministers,  200, 
205,  206;  and  the  case  of  Souie,  201; 
treaty-making  power  of,  248;  and  the 
most-favored-nation  clause,  261-263; 
and  mixed  commissions,  278;  and 
collection  of  contract  debts,  279 ;  and 
arbitral  court.  281;  views  of,  on  pa- 
cific blockade,  291;  champions  im- 
mimity  from  capture  of  private  prop- 
erty at  sea,  341;  makes  domicile  a 
test  of  enemy  character,  347 ;  rules  of, 
in  case  of  recapture,  349  350;  in  the 
case  of  the  General  Armstrong,  399; 
as  to  prizes,  401;  sells  arms,  etc.,  to 
France,  402;  on  convoy,  411.  412. 

Unneutral  service,  442.  etc. ;  carriages  of 
persons  and  despatches,  442^47 ;  dis- 
tinguished from  contraband.  442 ;  pen- 
alty for,  442-447 ;  the  law  of,  442, 443. 

Unsettled  questions  in  maritime  war- 
fare, 471,  etc. 

Usage,  15,  97,  135,  136. 

Usufruct,  rights  of,  371. 

Uii  possidetis,  373. 

Vancouver  Island,  122. 

Variag  and  Korielz,  452,  453. 

Vassal  states.  (See  Suzerainty,  states 
under.) 

Vatican.     (See  Pope  and  Papacy.) 

Vattel,  15,  38,  39,  63,  149,  159.  212,  242, 
384. 

Venezuela,  75,  119. 

Vessels,  nationality  of,  152-154;  right 
of  approach  of,  155,  150;  papers  car- 
ried by,  156,  157 ;  seizure  or  destruc- 
tion of  enemy,  347,  348;  destruction 
of  neutral.  453-456.  (See  also  Mer- 
chant vessels  and  War  vessels.) 

Vessels  of  war.      (See  War  vessels.)  \ 

Virginius,  case  of.  107-109. 

Visit  and  search,  in  case  of  insurgency, 
79;  in  case  of  belligerency,  82,  84; 
resistance  to,  349;  in  neutral  waters, 
398;  mode  of  exercise  of,  409-411; 
rights  of,  409-412;  in  case  of  convoy, 
411,  412. 

Vladivostok.  158. 

Volunteer  or  auxiliary  navy,  337-340; 


616 


INDEX 


sale  of  vessels  belonging  to,  permitted 
by  Germany,  338. 

War,  character  of,  during  antiquity  and 
the  Middle  Ages,  20-30;  in  India.  22; 
among  the  Hebrews,  22,  23;  in  Egypt, 
24;  definition  and  meaning  of,  293; 
general  questions,  293,  294;  purpose 
of,  294;  fundamental  principles  of, 
294 ;  an  abnormal  relation,  294 ;  may 
exist  without  declaration,  294-297; 
outbreak  of,  294-298;  termination 
of,  372-374;  declaration  of  (see  Dec- 
laration of  war) ;  effects  of  (see  Ef- 
fects of  outbreak  of  war). 

War  of  1756,  rule  of,  449-451. 

War  vessels,  courtesy  between,  5,  109; 
and  the  right  of  innocent  passage, 
128;  international  canals  open  to, 
137,  141;  restrictions  in,  in  canals, 
137,  141;  flags  of,  152;  evidences  of 
nationality  of,  152,  153;  identifica- 
tion of,  153;  immunities  of,  in  for- 
eign ports,  158,  161-166;  free  from 
rights  of  search,  160;  affording  asylum 
to  fugitive  slaves,  162,  163;  right  of 
asylum  in,  162-164;  can  be  denied 
to  ports,  etc.,  164;  exclusion  from 
foreign  ports,  164;  as  to  salvage,  165; 
jurisdiction  over  personnel  ashore, 
165,  166;  case  of  Afo/itcan,  165,  166; 
conversion  of  merchant  ships  into, 
337-340,  475-477;  admission  .of,  to 
neutral  ports  and  waters,  401,  402; 
duration  of  sojourn  in  neutral  ports, 
402,  404,  405;  fitting  out,  arming, 
equipping  of,  etc.,  in  neutral  ports, 
403 ;  repairs  of,  in  neutral  ports,  405, 
406;  coaling  of,  in  neutral  ports,  406. 
407;  internment  of,  408;  in  case  of 
convoy,  411,  412;  as  contraband,  429; 
wounded,  sick,  or  shipwrecked  per- 
sons taken  on  board  neutral,  451-453. 

Warfare,  maritime,  Hague  conventions 
relating  to,  53,  54;  area  of,  332;  laws 
and  usages  of,  333,  334;   objects  of. 


333,  334;  restriction  on  capture  in, 
336,  340-346;  regulations  regarding 
crews  captured  in  enemy  merchant- 
men, 344,  345;  enemy  character  in, 
346,  347 :  capture  of  enemy  goods  and 
vessels  in,  347;  bombardment  in, 
350,351;  blockade,  418,  etc.;  contra- 
band, 427,  etc.;  use  of  submarine 
mines  in,  477-479;  treatment  of 
sick,  wounded,  and  shipwrecked  in, 
345,  451,  453. 

Warfare,  of  the  Middle  Ages,  28-30; 
private,  in  the  Middle  Ages,  30;  as 
to  property,  305,  308 ;  as  to  historical 
monuments,  etc.,  372;  as  to  laws  of 
humanity  and  public  conscience,  372. 

Warfare  on  land,  laws  of,  315;  contribu- 
tions, 307, 367-370;  codes  of.  311,312; 
Hague  regulations  relating  to  lawful 
belligerents,  315-317;  treatment  of 
prisoners  in,  317-322;  of  sick  and 
wounded.  324;  means  of  injuring  the 
enemy  in,  324-326;  espionage  in,  326, 
327;  flags  of  truce,  327,  328;  armis- 
tices, 328,  329;  reprisals,  329,  330; 
military  occupation,  364,  etc.;  hos- 
tages. 370,  371 ;  conquest  and  cession, 
377,  378 ;  neutral  rights  and  duties  in, 
389-396;  Hague  Convention  IV  of 
1907,  520. 

Washington,  treaty  of  1871,  50,  51. 

Water  divide,  as  a  natural  boundary, 
121. 

West  African  conference.  (See  Berlin 
conference.) 

Wheaton,  Henry,  18,  19,  25,  39,  40,  43, 
125.  128.  133. 

Wildenhaus  case  (steamer  Noordland), 
167-169. 

Wireless  telegraphy.  360-363;  those 
engaged  in,  not  to  be  treated  as  spies, 
327;  In  land  warfare,  361,  390,  391; 
as  contraband,  362;  in  maritime  war- 
fare, 362,  363;  in  aerial  warfare,  360. 

Zanzibar,  67,  290. 


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